Carabott v Huxley [2005] EWCA Civ 1837

Case No B4/2005/0318[2005] EWCA Civ 1837
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(MR RECORDER MORRIS)
Venue Royal Courts of JusticeDate Friday, 19th August 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALL
LORD JUSTICE LLOYD
Between
PAULA CARABOTTRespondent-v-
Between
SHAUN HUXLEYAppellant
(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)
MISS REBECCA WILSON (instructed by Messrs Kennard Wells, London E11 3AJ) appeared for AppellantMISS RACHEL WINGERT (instructed by Messrs J Cooper Solicitors, London E1 4TT) appeared for Respondent
J U D G M E N T

LORD JUSTICE WALL:

[1]I will invite Lord Justice Lloyd to give the first judgment.

LORD JUSTICE LLOYD:

[2]This appeal is brought by Shaun Huxley, the defendant in the proceedings, against the sentence of 18 months that was imposed on him, for contempts of court that he admitted, by an order made by Mr Recorder Morris in the Bow County Court on 19th January 2005. He was charged with contempts of court for breach of an order made on 3rd March 2004 under the Family Law Act under six headings. He admitted all the allegations. He was sentenced to 18 months concurrent on all the allegations.[3]The hearing on 19th January was an adjourned hearing. He had been arrested on 12th January for one particular breach of the order, the order carrying a power of arrest. He came before the court on that day, before His Honour Judge Hornby. He admitted that he had been to the claimant's dwelling in the early hours of the morning of 12th January in breach of the order. He sought to advance mitigation. The judge considered that a Newton trial was necessary on the question of sentencing, and he was remanded in custody for a week after which the effective hearing took place.[4]The parties shared a relationship for a relatively short time, starting in the middle of 2001. Mr Huxley is now 30 and Miss Carabott is some years older. She has a daughter who is not Mr Huxley's daughter. As I say, they started a relationship in the middle of 2001. The final end of that relationship, at any rate so far as Miss Carabott was concerned, was in 2002, but it had been interrupted on at least two occasions before that. In December 2001 Mr Huxley assaulted Miss Carabott in her home. It was a serious assault which led to him being sentenced to ten months' imprisonment for aggravated assault, criminal damage, affray and assaulting a police officer. He went to prison and he was released, it seems, in May 2002 and at some point after that, fairly shortly after that it must have been, the parties were reconciled.[5]But then on 11th July 2002 there was a further serious incident of violence on the part of Mr Huxley against Miss Carabott, although, according to the account that she gives in a witness statement, having attacked her and kicked her several times and repeatedly, he stopped in his tracks, so to speak, and said something to the effect of recognising that he was risking time in prison. He was arrested. He was charged with assault and criminal damage. He was bailed on condition that he did not approach Miss Carabott, and that he should not come within the area bounded by the M25 motorway. I should say his home address is in Shropshire. But in breach of his bail conditions, in early 2003 he did attend at her home which is in London.[6]By the end of 2002, as I say, Miss Carabott regarded the relationship as definitively at an end. Mr Huxley was then and remained for some time thereafter unable to accept that.[7]In June 2003 again Mr Huxley came to Miss Carabott's home and in effect forced or persuaded her to allow him in, where he remained for several days leading to incidents of violence at the beginning of July.[8]Following that, Mr Huxley was arrested and remanded in custody at Pentonville prison. That led to Miss Carabott making an application under the Family Law Act in the Bow County Court for injunctive protection. To start with an ex parte order was made on 11th July, and that was effective over until a return date of 17th July. On that date the District Judge continued the order in the same terms for a year. Mr Huxley was not present, but I take it that there was no doubt that he had been served with the proceedings. The order had a power of arrest attached.[9]In August 2003 Miss Carabott's solicitors wrote to Mr Huxley asking him to contact them if he wanted to make any arrangements to collect his belongings that had been left in Miss Carabott's flat. That was followed by a reminder letter two months later, saying that unless he were to collect his belongings or make arrangements to that effect they would be disposed of. He seems to have taken no action pursuant to that.[10]In February 2004 Mr Huxley, still subject to the order and in breach of the order, came to Miss Carabott's home and asked to be let in. She refused to allow him in, called the police and he was arrested outside her flat; though he prevailed upon the police, once in custody, to allow him to telephone Miss Carabott, which itself was a breach of the order. The following day he went to court. On the 25th he was remanded in custody, but on the 24th he seems to have been able to telephone her on several occasions and come to the flat door and to ask her to let him in, which she did not do.[11]Mr Huxley was then remanded in custody, as I say. While in Pentonville prison he telephoned her and asked her to visit him.[12]On 27th February 2004 Miss Carabott for the first time applied to commit him for contempt. That came before Judge Hornby on 3rd March. At that stage Miss Carabott was represented by counsel and Mr Huxley by a solicitor. Judge Hornby decided not to impose any sanction for the contempts that had taken place, but to make a fresh order under the Family Law Act. That is the order that is still in force. It is to continue until 3rd March 2006 or until further order, and because it is the order that is still in force I shall refer to its terms.[13]The order has a penal notice and two of the paragraphs have a power of arrest attached. The first two paragraphs of the order are that Mr Huxley shall not return to, enter or attempt to enter, or go within 100 metres of the property in London, which is Miss Carabott's flat, where she lives with her daughter. Paragraph 2 is that Mr Huxley is forbidden to use or threaten violence against the applicant and must not instruct, encourage or in any way suggest that any other person should do so. Those are the two paragraphs that have the power of arrest attached.[14]Paragraph 3 forbids Mr Huxley from intimidating, harassing or pestering Miss Carabott, or from instructing, encouraging or in any way suggesting that any other person should do so. All three of the paragraphs of the injunction have been broken since then.[15]In September 2004 there was an occasion when Miss Carabott came home to find Mr Huxley outside her flat. That led to an incident of violence, not of the same degree of seriousness as those that had taken place earlier on, but nevertheless of violence. It is not entirely clear, but it seems that that may have led to a hearing in court at which the judge, according to the judgment on sentencing of Mr Recorder Morris, threatened him with prison for 14 days and told him to behave himself for six months. That sounds as if it might have been a suspended sentence or it may just have been a warning. It probably was not a suspended sentence, otherwise one would suppose that it would have been activated since the injunction was broken within a fairly short time.[16]On 6th October 2004 Mr Huxley came to Miss Carabott's home, unannounced and uninvited, and because she was frightened of him she let him into the flat. He remained there for some considerable time, and in the course of it there were incidents of violence. She telephoned her mother to report the violence. Mr Huxley is reported to have said, "If the police come here, before you can open the gate I will kill you. You will be dead." He heard police sirens and he left the flat in a hurry.[17]By the following day he had been arrested and he was sentenced on 7th October to 4½ months' imprisonment for breach for his contempt in breaching the injunction in that way. He therefore spent, because of the early release provisions, 2¼ months in Pentonville. Of course it is the conduct since 7th October which gives rise to the subsequent committal for contempt.[18]While in Pentonville prison, pursuant to the 4½-month sentence, he sent Miss Carabott two letters asking for a reconciliation and telephoned her on more than 30 occasions, using either her home telephone number or her mobile phone number, repeatedly asking her to visit him in prison and threatening to harm himself when he was told that their relationship was at an end.[19]Eventually, after about a month, following intervention on behalf of Miss Carabott, the prison authorities barred telephone calls to her phone numbers, so that Mr Huxley could no longer make calls to her from prison. At that time Miss Carabott's solicitors wrote to Mr Huxley warning him that his actions were in contempt of court and indicating that she had no wish to communicate with him, and that if he continued to break the injunction a further committal application would be made.[20]Miss Carabott enjoyed about a month of relative peace from mid-November to mid-December 2004, once the telephone calls had been effectively cut off. But on 14th December Mr Huxley was released and thereafter he embarked on telephoning her again and again and again, every day and throughout the day. On a few occasions she answered the call and told him not to contact her. His response varied from threats of violence to her, to abusive words, to threats of violence to himself, and begging her to visit him. Indeed, on 25th December, at a time when Miss Carabott was away from home, she came back to find no a very large number of messages on her answering machine, all of them from Mr Huxley and most of them of an abusive nature.[21]Matters came to a head in January 2005 when on 11th January Mr Huxley telephoned Miss Carabott in the morning to say that he was coming to London from his home in Shropshire, making some reference to, "I can't face going to prison again". Miss Carabott thought that that may have had something to do with another pending court appearance, although of course if he came to London and if he came to her flat he was again facing prison.[22]Mr Huxley telephoned later in the day and the call was answered by Miss Carabott's mother, who warned him to get back to Shropshire because if he came to the flat the police would be called. Later in the day in the evening he had arrived in London. He telephoned Miss Carabott's mobile phone from public telephone boxes in London. On one occasion she answered the telephone and spoke to Mr Huxley, who was making the calls. He said he wanted to come to her flat for a cup of tea and a chat, and she said that he should not come.[23]In the early hours of the following morning, half past midnight on the 12th, Miss Carabott was in her flat and she was woken by loud thumping to her front door. It was Mr Huxley, who was shouting to be let in. He continued to do that for some time, but she summoned the police. He left of his own accord and was arrested by the police outside the flat.[24]That was the occasion on which, following his arrest, he was brought to Bow County Court and there was the appearance before Judge Hornby. I have referred to the order that was made on that occasion. As that order records, he sought to mitigate his breach of the order by saying that he had been invited to visit the flat and that he was proposing to collect his clothes. As Miss Carabott said in a further witness statement for the adjourned hearing, this was entirely untrue. She had never invited him to come to the flat. Letters had been written to him during 2003, that I have mentioned, telling him to make arrangements through the solicitors to collect his clothes if he wanted to.[25]So the matter came before Mr Recorder Morris on 19th January and Mr Huxley was facing an application for committal, the details of the breaches of the order being said to be six in category: firstly, the attendance at the flat at half past midnight on 12th January and asking to be let in; secondly, four telephone calls to Miss Carabott on 11th January asking that she meet him; thirdly, the two letters written to her during his time in Pentonville prison following the committal on 7th October; fourthly, the 35 telephone calls made from Pentonville prison between October and mid-November; fifthly, "repeatedly telephoning the applicant following your release from prison on 14th December 2004"; and sixthly, making threats against the applicant's life by telephone.[26]In setting out the history I have mentioned all of those events. It is fair to say that the fifth category, "repeatedly telephoning the applicant following release from prison on 14th December", might be said to be a considerable understatement, given Miss Carabott's evidence as to the enormous number of phone calls that he has made.[27]The matter so came before Recorder Morris. It is correct to say, as I have already mentioned, that on Mr Huxley's behalf, he being represented at that hearing, the breaches of the order were not disputed.[28]Miss Carabott had, as I have mentioned, made a witness statement in order to refute his suggestion that he had been invited to the property and that he was coming to collect his clothes. We are told by counsel (neither of whom, I think, was present on 19th January) on instructions that the matter came on first in the morning at a time when Mr Huxley was there, because of course he was still in prison on remand, but Miss Carabott was not there and Mr Huxley had not had much, if any, opportunity to see the witness statement. The matter was therefore put back to 2 o'clock. By the time that it was dealt with effectively, Mr Huxley had had the opportunity of seeing the witness statement and being advised about it and he did not challenge any of the acts of contempt that were alleged. Accordingly, Miss Carabott, though she had made a witness statement, was not required to give oral evidence.[29]The matter was dealt with in quite short terms, given that it was a matter of submission not of evidence, and no technical points such as sometimes arise on committal applications were taken. There were counsel for both parties, as I understand it.[30]The Recorder gave a short and I think one can fairly say pithy judgment, which is addressed in the second person directly to Mr Huxley. The tenor of it is that he has to accept that his relationship with Miss Carabott is over. He has shown no signs of being prepared to accept that the relationship is over. He has not been willing to comply with court orders, bail conditions and the general criminal law. Accordingly, the sentence of 18 months was imposed.[31]What is said on his behalf by Miss Wilson today is that, while it is accepted that a sentence of imprisonment was appropriate, nevertheless 18 months was, as she puts it, manifestly excessive. Her submission is that a 12-month sentence would not have been out of line with the circumstances, nor with the sort of sentence that would have been imposed in the circumstances if the criminal jurisdiction had been invoked rather than the Family Law Act. She stresses that Mr Huxley admitted the breaches that were alleged. She says he admitted them at earliest opportunity. She says that he apologised through his representatives. She points out that he had already served a week in custody since 12th January. She says that the Recorder made no reference to any of these matters, nor to the point that was addressed in mitigation that Mr Huxley was already addicted to the use of drugs.[32]Miss Wilson tells us that while he has been in prison he has now been diagnosed as suffering from schizophrenia and is on regular and appropriate medication. One has to hope that that diagnosis is constructive and that the medication will enable him to cope with his manifestly serious problems. The diagnosis of schizophrenia is not relevant to this appeal because it was not a matter before the court at the hearing in January, and what Miss Wilson has to persuade us of is that on the material before the court then 18 months was manifestly excessive.[33]The Recorder's judgment refers to having seen a medical report and to Mr Huxley having problems. We are told that there was not in fact a medical report as such. There is a report dated 19th January which is by a body called CARAT (Counselling, Assessment, Referral, Advice and Throughcare). It is designed to inform Mr Huxley and the court that, if Mr Huxley is convicted and brought back to Pentonville, he would take part in a directions programme with a view to rehabilitation. It mentions that he has been using heroin and crack cocaine, that he consumes an excessive amount of vodka daily, and that he suffers from agoraphobia and has suffered from severe depression from the death of his father in 1996, for which he is taking medication. That is not strictly speaking a medical report, but it is no doubt the document to which the Recorder was referring which is a constructive document within the context of the prison regime.[34]It is well known that many of those who spend time in custody in prison do suffer from drug, drink or other related problems, and all too frequently one of the functions of the prison authorities is to assist prisoners by a rehabilitation programme. That is no doubt what the Recorder had in mind when, having imposed the 18-month sentence and having referred to the medical report, he said:
"You have eighteen months in which to get those sorted out. You will have a chance in prison to do it. The regime in prison will ensure that you cooperate. Take advantage of it."
[35]The desirability and the availability in prison of rehabilitation programmes is not, of course, for a moment a reason for imposing a prison sentence that is not justified, or for imposing a longer sentence than would be appropriate having regard to the circumstances of the case. But it is no doubt a factor of which sentencers are well aware, that during a justified prison sentence there are steps that the prison authorities can take to assist prisoners in dealing with their problems.[36]What Miss Wilson submits is that the learned Recorder should have taken account of the prompt plea, the mitigation, the admission of responsibility and what we are told was the apology, and, for good measure, the fact that Mr Huxley had spent a week in custody already. He did not refer to any of those matters. Therefore, she submits that it cannot be clear that he took account of them.[37]It is no doubt true that if the Recorder had delivered a more lengthy reasoned judgment, possibly of a conventional kind referring to Mr Huxley in the third person rather than the second person, he might have gone through a longer checklist of points. Whether those sentencing remarks would have been more effective in trying to get the message over to Mr Huxley that he must face up to the ending of his relationship, is perhaps a matter of question.[38]But at all events Miss Wilson is entitled to say that the Recorder makes no reference to the early plea, to the admission of responsibility, to the apology, or to the week spent already in custody, and that is a starting point for her submissions. But in essence what she has to say is that 18 months is excessive on any basis, even if he had taken into account those matters.[39]Counsel referred in their submissions to a number of authorities. Counsel who was originally instructed, Mr Roche, referred to the well-known case of Hale v Tanner [2000] 1 WLR 2377, a decision of this court, the leading judgment given by Hale LJ (as she then was), in which she gave valuable guidance of a kind that had not perhaps been available before that as to the considerations to be borne in mind when sentencing for contempt, particularly under the Family Law Act. That too arose from a non-matrimonial but intimate relationship. As it happens the contemnor in that case was the female, but nothing turns on that.[40]Miss Wingert, for Miss Carabott, referred to a very recent authority (I think it must be the most recent in this area), the case of Robinson v Murray [2005] EWCA Civ 935, which was before this court on 12th July, the court consisting of the Lord Chief Justice, Thorpe LJ and myself. That was a case, also under the Family Law Act, where the contemnor had been sentenced to eight months concurrent for each of three breaches of a non-molestation order and it was submitted that that was excessive, but the court was satisfied that it was not.[41]That case refers to two intervening cases of the Court of Appeal which are helpful, Lomas v Parle [2003] EWCA Civ 1804, [2004] 1 WLR 1642 and Head v Orrow [2004] EWCA Civ 1690, which at that stage appeared not to have been reported but has now been reported I think in the Family Law Reports. Both of those go into some detail, and consequently so does Robinson v Murray, about the interaction between the jurisdiction under the Family Law Act and the criminal jurisdiction that is also pertinent to situations of this kind under the Protection from Harassment Act 1997, under which the maximum penalty is considerably greater, at five years, than that under the Contempt of Court Act.[42]Miss Wilson submitted that an instructive comparison could be drawn with Lomas v Parle, which was a case in which the contemnor had been sentenced to four months for the contempt and the appeal was by the other party, who persuaded the court that four months was unduly lenient and that the sentence should be eight months. That, she submits, was in some ways a similar case, although she says that that was a more serious case because, for example, the contemnor not only wrote to the claimant, but wrote to her including for example razor blades in a letter.[43]It seems to me that, while reference to other cases is helpful in terms of understanding the principle, it is not helpful to make analogies of fact between one case and another because there are so many different variables. In the present case it is true to say that Mr Huxley has not in the period since the previous committal actually acted with violence upon Miss Carabott's person, but he has threatened violence by telephone in calls made to her or to an answering service of hers. He has been abusive. He has unquestionably harassed her and pestered her in a remorseless way, initially during his time in prison, though obviously he was not at liberty to the same extent that he was at that stage as he became after his release from prison on 14th December. After that, the story of his conduct is quite intolerable. While it is true that there was no actual violence, I can well imagine that the effect on Miss Carabott would have been profoundly demoralising, unsettling and disturbing.[44]Of course, the Recorder was sentencing him only for the six categories of contempt that had been committed and identified in the notice to show cause. But it is right that he looked at the matter in the context of the past history, and the cumulative effect of his conduct to Miss Carabott, breaches of the criminal law, breaches of bail conditions and breaches of the injunctions, is something that has to be taken into account.[45]As it seems to me, Miss Wilson's best point would be this. The worst possible case of contempt should attract a sentence of two years, because that is the maximum. This is not the worst possible case of contempt in terms of the acts involved, and he is entitled to some credit for the fact that he did admit the acts in question, even if he admitted them rather on 19th than on the 12th, at which stage, then only concerned with the events of only that morning, he sought to explain it away on a false basis. But it is true that he did admit the contempts in the course of 19th January. He is entitled to some credit for that and for the apology, and I suppose for the week that he had spent in prison already. So, she would say, if one starts from the proposition that this is not the worst possible case anyway and that he is entitled to credit for those various matters, she would say one must come to a sentence of less than 18 months by way of discount or, as it were, hierarchy from 24 months.[46]It seems to me that that submission is attractive but fallacious. The worst possible act of contempt involving serious violence would not be dealt with by way of committal, or not only: it would be dealt with under the criminal law, as were the initial two acts of violence. The maximum sentence would be a good deal more than two years.[47]In the present case, while I am prepared to accept that it might have been better if, consistently with his short, pithy and succinct style, the Recorder had made some reference to his not having made Miss Carabott give evidence, to his apology and to the fact that he had spent a week in prison, I cannot come to the conclusion that if he had done so he would or should have reached a sentence of anything less than 18 months. I would accept and hold that there is a range of sentences that could properly have been passed for these contempts, and it may be that a different judge would have given him more credit than did the learned Recorder. But it seems to me that while perhaps 18 months is at the high end of the scale, it cannot be said to be manifestly excessive. It is a sentence that was within the ambit of proper sentences for these extremely serious and persistent contempts, following one previous committal and several other breaches of Mr Huxley's obligations under the criminal law and his obligations to Miss Carabott.[48]For all that Mr Huxley is entitled to some credit for his apology, for his plea and I suppose in theory, although it becomes a matter of tinkering, for the week already spent in prison, I am satisfied that 18 months was not manifestly excessive and I would dismiss the appeal.

LORD JUSTICE WALL: I agree. I add only one point.

[50]Through the industry of counsel, we were, as my Lord has already stated, provided with a transcript of the judgment of this court given on 12th July 2005 in a constitution chaired by the Lord Chief Justice. That case contains a very helpful review of the authorities, including, of course, Hale v Tanner and Lomas v Parle. There is also substantial reference to the case of Head v Orrow, which is now reported as H v O [2005] 2 FLR 329. A point made by the Lord Chief

Justice and taken from both Lomas v Parle and H v O is:

"... so far as possible sentences passed under section 42 should not be manifestly discrepant with sentences for harassment charged under the 1997 Act."
[51]In the instant case, of course, the judge was dealing with section 42 of the Family Law Act and his powers were limited to a sentence in the maximum of two years for contempt of court. Under the 1997 Act, as my Lord has pointed out, the maximum sentence is five years. It is however, noteworthy that in Robinson v Murray the court makes specific reference to a decision of the Criminal Division of the Court of Appeal in two cases, R v Liddle and R v Hayes [1997] 3 All ER 816, in which Curtis J gave guidance to the criminal courts as to the level of sentencing in cases of harassment. Curtis J had said that:
"... for a first offence a short sharp sentence may be appropriate, though much will depend on the factors of repetition and breach of court orders and the nature of the misconduct. Obviously, the facts of each case vary and the facts of any particular case may require a longer sentence. For a second offence longer sentences of about 15 months on a plea of guilty would, in our view, be an appropriate starting point, and from then on it is possible to see from the maximum of 5 years fixed by the statute for this offence where each case fits into the statutory framework ..."
[52]Against that background, it seems to me that in the context of a two-year maximum, a sentence of 18 months for the conduct in this case, which was persistent and lasted over a substantial period of time, cannot be said to be disproportionate. In those circumstances, like my Lord, I would dismiss this appeal.

ORDER

Appeal dismissed; detailed assessment of the parties' Community Legal Services Funding certificates. (Order not part of approved judgment)