Ford v Ford [2003] EWCA Civ 1934

Case No 2003/2624[2003] EWCA Civ 1934
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE MESTON)
Venue Royal Courts of JusticeDate Friday, 19 December 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE CARNWATH
LORD JUSTICE SCOTT BAKER
Between
SUZANNE LOUISE FORDRespondent-v-
Between
PAUL MARTIN FORDAppellant
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R EGLETON (instructed by Messrs Gales, Dorset, BH9 2ET) appeared for AppellantMR J WARD-PROWSE (instructed by Messrs Jacobs & Reeves, Dorset, BH15 1AU) appeared for Respondent
J U D G M E N T(As Approved by the Court)
Crown copyright©

LORD JUSTICE CARNWATH:

[1]I will ask Scott Baker LJ to give the first judgment.

LORD JUSTICE SCOTT BAKER: There is before the court an appeal by Paul Martin Ford against his conviction for contempt of court in breaking an injunction and his subsequent sentence of eight months' imprisonment comprised of two months for the index offence and for six months consecutive by way of implementation of a suspended sentence.

[3]This case arises out of a long-standing matrimonial conflict. The appellant has appeared before His Honour Judge Meston who has made orders on a number of occasions, apparently some six occasions at least in the last 12 months alone before the hearing on 28 November 2003. It is that hearing which gives rise to this appeal.[4]On 29 April 2003, the appellant was sentenced to four months' imprisonment for breaches of injunction that he had admitted on 21 March and 6 months' imprisonment concurrent for breaches that had been found proved by the court on 11 April, making a total sentence of six months' imprisonment suspended for one year. The circumstances of the various offences are set out in a schedule at page 17 of the court bundle. They all involve intimidating, harassing and pestering Mrs Ford in various different ways.[5]At the same time as imposing the suspended sentence,

the judge directed that an injunction in the following terms should continue until 30 April 2004:

"Not to return to, enter or attempt to enter 19 Hudson Close, Poole, Dorset or enter any part of the road known as Hudson Close, Poole; Not to use or threaten violence against [Mrs Ford]; Not to intimidate, harass or pester [Mrs Ford] and not to instruct, encourage or in any way suggest that any other person should do so. Not to telephone or otherwise communicate with [Mrs Ford] except through solicitors."
[6]Mr Richard Egleton, who has appeared for the appellant, has helpfully prepared a chronology which he has annexed to his skeleton argument. It is unnecessary to recite it in full, suffice it to say that on 1 July 2002 the appellant was fined £150 by His Honour Judge Bond; on 13 September 2002 Judge McKinney made a six month imprisonment order suspended until 13 March 2003. One of the breaches of injunction leading to that suspended sentence involved an incident where the appellant followed Mrs Ford in her car; a very similar incident to the one which led to the order that is appealed from. That incident occurred on 15 July 2002. There followed a committal order made by Judge Meston on 1 November 2002, again involving a driving incident. In that instance six months' imprisonment was imposed, but the appellant was released some four weeks later, on 29 November 2002, having purged his contempt. The next incident occurred on 29 April 2003 when the suspended order to which I have already referred was made by Judge Meston.[7]Turning to the facts of the immediate matter of complaint, on Friday 7 November 2003 Mrs Ford had taken her sons, Edward and Luke, to school as usual. She had just dropped off Edward at Bear Wood School and was travelling along King John Avenue in Bear Wood, Bournemouth. She noticed the time was 8.59 am. She was driving towards the Clock Roundabout at Kinson. She recalls seeing a blue, M registered, Proton driving along the road. She was aware that the appellant drove such a vehicle.[8]Mrs Ford continued with her journey to High Howe Lane and then towards the Clock Roundabout, where she took the outside lane. There was one vehicle in front of her. As she was about to turn right towards Ringwood Road, she noticed in her mirror the appellant immediately behind her. He was gradually moving his vehicle closer to hers. She says that she was immediately very frightened but pretended not to see him and continued on her journey, turning right into Ringwood Road. She went round the roundabout and could see the appellant in her mirror. He was glaring at her. She could see that his vehicle was a couple of feet or so behind her. She felt he was so close that he was stuck to her bumper. She took the outside lane and the appellant was still behind her.[9]Mrs Ford then proceeded to cross into the nearside lane shortly afterwards. As she did so the appellant did precisely the same thing. He was trying to overtake her on the left-hand side and, she said, he could have caused a serious accident. This was not the first time he had approached her on this particular stretch of road and it was her belief that he was trying to run her off the road and force her to lose control of the car.[10]The appellant continued to follow her along Ringwood Road. His vehicle remained extremely close. She turned into Dominion Road with the sole intention of going to the police station to report the incident. As she pulled into the police station, the appellant did not stop but drove past very slowly. She described the incident as having made her feel very shaken. She was very frightened. Initially she said she was so shaken she was unable to speak to the police. There is independent, corroborative evidence from the police that she was in an extremely distressed state at the time.[11]The appellant's case was that nothing of the kind had occurred. He made a sworn statement, to which it is unnecessary to refer in any detail. It was his case that he was not in any way seeking to harass Mrs Ford. She must have seen him in the area at the time and has created an essentially false story having been frightened simply by seeing him.[12]The appellant sought to produce an alibi which is supported by the receptionist at the doctor's surgery that he attended that morning. He was not there from 9 o'clock, as he originally contended, but from 9.10 am until 9.41 am. It was his case that it would be extremely difficult for him to have been tailgating Mrs Ford at the time and place he was alleged to have done so.[13]However, there was evidence before the judge that the journey from Kinson Police Station to the doctor's surgery would have taken an estimated time of eight minutes based on a 30 miles per hour speed limit. Not all of the journey is on roads restricted to 30 miles an hour, so it is possible that the journey could be covered in a somewhat shorter time. In that event the doctor's receptionist evidence was not inconsistent with the incident having occurred close to the police station just before 9 o'clock that morning.[14]Mr Egleton submits that the judge was in error in finding contempt proved in this case which requires the high standard of sureness required in criminal proceedings. He submits that there are discrepancies in the evidence of Mrs Ford as against the original written statement that was submitted, and that her timing does not square precisely with the evidence of Police Woman Wilmot who says that she saw Mrs Ford at the front Inquiry Desk of the police station at around 9.30 am.[15]However, the judge had to choose between two completely conflicting accounts. He heard the witnesses, he had the advantage of seeing them give evidence and he came to the clear conclusion that the claim that Mrs Ford was telling the truth. That seems to me to be a conclusion which is unassailable in this court.[16]If my Lord takes the same view, it is then necessary to consider whether the total sentence of eight months' imprisonment was appropriate in all the circumstances. As I have said, that was made up as to the suspended sentence of six months' imprisonment plus an additional sentence of two months' consecutive for the breach.[17]We have been referred to Hale v Tanner, decided in this court on 20 July 2000 and, in particular, to paragraph 38 of the judgment which runs as follows:
"It is rare, when one looks at the reported cases, to find sentences of 6 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."
[18]Mr Ward-Prowse, who has appeared for Mrs Ford, realistically, in my judgment, accepts that he would have difficulty in holding the total sentence of eight months' imprisonment. On the question of totality, a sentence of eight months' imprisonment was manifestly excessive in the circumstances of this case. One has to bear in mind that what happened on the day in question was not premeditated and, in the event, did not cause any collision or injury. That said, however, it was yet another incident in a long saga of harassment and intimidation. Sentences of imprisonment are imposed in domestic cases of this kind primarily to try and ensure that similar conduct is not repeated in the future. Unfortunately the appellant has shown that he is only too ready to disregard orders of the court.[19]Mr Egleton submits that the judge did not pay sufficient regard to three matters of mitigation;(i) that the appellant had gone a substantial period from April to the autumn without having broken the injunction;(ii) that he would be preventing from taking important examinations at Oxford University if imprisonment was imposed; and(iii) that his father was terminally ill. All these points were made to the learned judge. The fact that he did not fully refer to them in passing sentence does not mean that he did not have them in mind. In my judgment they are more than adequately taken into account in the circumstances of this case by a reduction in the total period of imprisonment from eight months to one of six months.[20]I have considered carefully the submissions of Mr Egleton that the sentence should be reduced even from six months' imprisonment to, perhaps, as short a sentence as would result in the appellant's immediate release. But I am unable to find any reason that would justify not implementing the whole of the period of imprisonment that was imposed by way of suspended sentence in April of this year.[21]I would therefore dismiss the appeal against the finding of contempt of court, but allow the appeal in respect of the sentence by reducing the sentence of eight months' imprisonment to one of six months' imprisonment. I would activate the suspended sentence and impose no separate penalty for the further offence.

LORD JUSTICE CARNWATH: I agree.

Order

Appeal refused against finding of contempt of court. Appeal allowed in respect of the sentence which will be reduced to one of 6 months. Suspended sentence to be activated and no separate penalty imposed for the further offence. No order as to costs. Public Funding Assessment of legally aided parties.