Thompson v Mitchell [2004] EWCA Civ 1271

Case No B1/2004/1823[2004] EWCA Civ 1271
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
(HER HONOUR JUDGE BUTLER QC)
Venue Royal Courts of JusticeDate Monday, 23rd August 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE KEENE
LORD JUSTICE WALL
Between
EMMA LOUISE THOMPSONRespondent-v-
Between
STEVEN MITCHELLRespondent
(Computer-Aided Transcript of the Palantype 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 D BROOKES (instructed by The Johnson Partnership, Nottingham NG1 6JE) appeared for ApplicantMISS E MICHALOS (instructed by Treasury Solicitor, London SW1H 9JS) appeared for Attorney General as an Amicus Curiae
J U D G M E N T

LORD JUSTICE KEENE:

[1]I shall ask Lord Justice Wall to give the first judgment.

LORD JUSTICE WALL: This is an appeal by Steven Mitchell against a sentence of imprisonment passed on him by Her Honour Judge Butler QC sitting in the Nottingham County Court on 28th May 2004, although her order is dated 2nd June. The judge was dealing with what in generic terms I can call a non-molestation order made against Mr Mitchell in favour of Emma Louise Thompson, who is the mother of his child and with whom he had plainly been in dispute for some time.

[3]The judge found proved three breaches of an order made on 11th March 2004 (wrongly described in the subsequent documentation as an order made on 11th March 2005). On that occasion, in addition to granting the injunction, the judge hearing the matter, Judge Waine had dealt with committal proceedings relating to an earlier order which is not in our papers, which he found Mr Mitchell to have breached, and in relation to which he had imposed a sentence of 56 days' imprisonment on Mr Mitchell. He had, however, suspended that sentence.[4]The conclusion reached by Judge Butler on 28th May, having found the breaches of the order of 11th March 2004 proved, was that for those breaches Mr Mitchell should be committed to prison for a period of 72 days. In addition she decided that the suspended sentence made by Judge Waine on 11th March 2004 should be activated and should run consecutively, with the result that Mr Mitchell should serve a total of 128 days in prison. No criticism I think can be made of the terms imposed by the judge, and indeed none has been made. The appeal arises for a quite different reason, namely that at the end of her judgment the judge stated:
"This gives a total of 128 days. Mr Mitchell is not to be released until 128 days have passed. Mr Mitchell is at liberty to purge his contempt, but his sentence cannot be halved."
In accordance with this direction, the order made by

the judge reads as follows:

"The Respondent, Steven Mitchell do be committed for a total period of 128 days to Nottingham Prison, namely until 16 September 2004 (see attached)."
Attached is of course the Record of Service, Hearing and Contempts Found Proved with the total of 128 days made up as to the 72 days and the 56 days.[5]The words which cause the difficulty are "namely until 16 September 2004" and the question arose as to whether the judge had jurisdiction to make an order which required the prison authorities to keep Mr Mitchell in prison until a specified date. It seems from an affidavit sworn by a Miss Charlotte Covereley, a trainee solicitor with the firm instructed by Mr Mitchell, that the judge herself had some anxiety about the form of order, but when it emerged it emerged as I have indicated. The solicitors instructed by Mr Mitchell sought to query it further with the judge and, without a hearing, the judge issued an amended order on 23rd July 2004 which ordered Mr Mitchell to be committed to Nottingham prison until 16th September 2004 and deleted all reference to the 128 days. A similar alteration was made to the Record of Service, Hearing and Contempts Found Proved which then read, "total imprisonment until 16 September 2004."[6]In these circumstances, a very simple submission is made by Mr Brookes this afternoon on Mr Mitchell's behalf. It is that section 33 of the Criminal Justice Act 1991 provides that a short-term prisoner, that is one sentenced to a term of 12 months or less, must be released from imprisonment as soon as he has served one half of his sentence. If that were not clear enough, section 45 of the same Act provides that the provisions of section 33 apply to persons committed to prison for contempt of court or any kindred offence. It follows, accordingly, on that argument that the judge simply had no jurisdiction to make the order she did, which plainly flew in the face of the statute.[7]Faced with these papers as a matter of urgency towards the end of last week, my Lord and I took the view that it would be helpful to have argument from the Attorney-General as a friend of the court. As my Lord has already indicated in argument, we are extremely grateful to the Attorney and to Miss Michalos for a detailed and extremely helpful skeleton argument, which not only deals fully with the facts, the Contempt of Court Act 1981, the Criminal Justice Act 1991, and the provisions for early release, but also puts the argument both ways on the question of jurisdiction.[8]Speaking for myself, having read the argument, I am in no doubt at all, as indeed is the Attorney at the conclusion of the skeleton argument, that there is no power in the court to override the early release provisions of the Criminal Justice Act 1991 and that a judge who sentences a contemnor to prison for contempt of court must do so for a fixed term of weeks, months or years up to the maximum of two years. There is no power to direct that a contemnor should remain in prison until a specified date or should not be released before a specified date. As is apparent from a number of the earlier authorities, if a judge wishes to take into account the early release provisions, then it is open to him or her to calculate a sentence which does so, provided always of course that that sentence is commensurate with the contempt which has been committed.[9]Accordingly, at the end of the day I am in no doubt that the Attorney's conclusion is correct, that sections 35 and 45 of the 1991 Act cannot be overridden in the manner that the judge sought to do in this case and that the court has no power to make a sentencing order that has the effect of overriding those provisions.[10]In these circumstances, as we have already indicated, I fully agree with the Attorney that the appeal must be allowed. The order as drawn on 2nd June should be amended to delete the final five words or, alternatively, the phrase "namely until 16 September 2004". It will accordingly read "the respondent, Steven Mitchell do be committed for a total period of 128 days to Nottingham Prison". I would also discharge the revised order made on 23rd July 2004.

LORD JUSTICE KEENE:

[11]I agree. A judge sentencing someone for contempt cannot by his or her order entitle the Home Secretary simply to opt out of sections 45 and 33(1) of the Criminal Justice Act 1991. This appeal must be allowed and I agree with the form of the order which my Lord has indicated.

ORDER

Application for permission to appeal out of time granted; appeal allowed and the order as drawn on 2nd June amended to delete the final five words "namely until 16 September 2004"; it will accordingly read "the respondent, Steven Mitchell do be committed for a total period of 128 days to Nottingham Prison"; detailed assessment of the Appellant's Community Legal Service Funding certificate. (Order not part of approved judgment)