Chelsea Football Club Ltd v Nichols [2020] EWHC 454 (QB)
[1]Mr Nichols' case comes before me today for sentencing for contempt of court. On 14th January this year he was found by Deputy High Court Judge Margaret Obi to have committed that contempt by having trafficked a ticket for a Chelsea FC football match on 4th December of 2019. This was in breach of an order of the High Court made by Dove J on 19th February 2019 restraining Mr Nichols from that very activity. That order had been amended and continued by Cutts J on 26th February 2019 and further continued by Master McCloud on 2nd May 2019.[2]The wider factual background to this case is set out in Ms Obi's judgment of 14th January, with which this judgment should be read. I do not need to repeat it here. It is, however, important and relevant background to note that in September 2()18 Mr Nichols had been found to have trafficked Wimbledon tickets in breach of a High Court order. He was on that occasion sentenced to six months' imprisonment for contempt of court, suspended for two years. He therefore committed the current contempt of court during the currency of that period of suspension.[3]There are no sentencing guidelines directly applicable to contempt of court. The authorities in the decided cases to which I was taken guide me to have regard to comparison with sentencing guidelines for breach of other penal orders such as antisocial behaviour orders and, where appropriate, guidelines for guilty pleas in criminal trials. The authorities themselves also set out a framework particular to sentencing for contempt by which I must be principally guided today.[4]From those authorities, I distil some general propositions about the contempt of court jurisdiction, which I underline at the outset. There is a very clear public interest in having these High Court orders respected. They are not provisional. The High Court is determined to protect those to whom it has given the benefit of an order. There is an inherent seriousness in a breach of an order of the High Court, above and beyond the commission of the underlying mischief which it seeks to restrain on an individual basis. It undermines the public interest - and public confidence - in the administration ofjustice.[5]I am required to pass the minimum sentence which I consider to be effective to punish the behaviour which has occurred, deter others from doing likewise and secure future respect for court orders from the person having been found to be in contempt. I am directed by the guidelines and the authorities to look at the culpability of the breach, that is how seriously blameworthy it is, and at the harm done.[6]As to culpability, in this case I note that the fact of the breach is undisputed. Mr Nichols says in the statement I have before me that the act of trafficking constituting the contempt was impulsive and made under a degree of personal stress. But however planned or unplanned the act of trafficking may have been, Mr Nichols had a choice. He chose to breach the order. He did so deliberately and for personal gain (albeit modest). I have no evidence that the order itself or the suspended sentence to which he was subject acted as a material restraint on his behaviour. He acted in disregard or defiance of the decision of the court, in a way which inevitably defeated the objectives of the court, contrary to the interests of justice. The apology briefly noted in Mr Nichols' statement before me today does not persuade me that the gravity of this conduct is fully understood, or that an unambiguous attempt has been made to[7]purge the contempt adjudged by Ms Obi in January and give confidence of restored respect for court decisions. All of this points to a high degree of culpability. As to harm, I have noted what decided cases emphasise about the perniciousness of ticket touting: the harm it does to the business model of sports organisations, the exposure of purchasers to having the tickets rejected or, conversely, the risks posed to public order and public safety by unauthorised and uncontrolled access to sports grounds. Mr Nichols was party to an inherently harmful activity. On the other hand, I also remind myself that there is a single incident before me today with no evidence as to any particular consequences, and that the harm in this case is therefore of a general rather than a specific nature. I consider the degree of harm on the facts before me to be no more than moderate.[8]As the authorities recognise, [ cannot read the sentencing guidelines for antisocial behaviour orders directly across to sentencing for contempt of court. Different penalties are available, different scales of penalty are available, and there are real differences, as I have said, between contempt jurisdiction and criminal jurisdiction. However, I do have regard to the sentencing guidelines in calibrating the appropriate sentence for a contempt of the culpability and harm that I have found. I also of course take into account the body of authorities on sentencing for contempt of court.[9]Applying the guidance given by the authorities, it is difficult to see that I can commensurately pass any sentence short of immediate custody. I note that that was the expectation of Ms Obi, having tried the case and adjourned sentencing for the purpose of enabling personal mitigations to be put forward. I am satisfied that nothing less than immediate custody addresses the culpability of this conduct, or is likely to deter others or constrain Mr Nichols' future behaviour. I am reinforced in this view by the fact that the contempt was committed during the currency of a suspended sentence also for contempt, involving ticket touting in breach of an order of the High Court. I consider that to be a seriously aggravating factor. demonstrates a sustained and apparently undeterred lack of respect for orders of the court and for the administration ofjustice.[10]When I come to consider personal circumstances I therefore start with the fact that Mr Nichols is not entitled to be treated as a person of good character because this is not the first occasion on which a sentence of imprisonment for contempt of court is being passed on him.[12]Firstly, his health. This is not the first time Mr Nichols has put his health in front of the High Court as a mitigating factor. I have an account from Mr Nichols of the state of his health, with a list of his medicines. I do not have a medical report. I have a doctor's letter from last October which confirms that he is diabetic and advises on the management of his condition. None of this helps me vew much in trying to understand the relevance of his medical conditions either to his behaviour inA roved Judgment
[13]committing contempt of court or to the potential impact of a sentence of imprisonment. But I have noted what is said. Other personal mitigations put before me go to his financial situation and to the impact of imprisonment on his family. Mr Nichols has had his share of personal adversity and misfortune. His wife has a disability which affects the care she can oive her family. He has three teenage children only the eldest of whom is in employment* He says social services have been involved in the past and that his family members all to some degree rely on the care and support he provides. He has provided no specific evidence as to his finances. or indeed as to the potential impact of a period of imprisonment on his family. But I give what he and his son say as much mitigating weight as I am able to. I have particular regard to what is said about the impact on his family. His family are the innocent victims of his conduct and [ am sorry for the consequences which they are set to face as a result of it.[14]I have said that I consider immediate imprisonment to be inevitable because of the culpability of the contempt, aggravated by the fact that this is a second committal for contempt, Mr Nichols having been undeterred from breaching a High Court order by a still-current suspended sentence of imprisonment for contempt.[15]The maximum sentence for contempt of court is two years, I must sentence for the minimum term commensurate with the relevant circumstances before me. I take as my starting point that this is a culpable breach. but causing no more than moderate harm. Looking at the single incident before me, this contempt of court is towards the lower end of the spectrum of immediately imprisonable contempts. I take as a starting point a sentence of immediate imprisonment of six months. I consider the contempt to be aggravated by having been committed during the currency of a sixmonth suspended sentence for contempt of court.[16]In mitigation I take into account Mr Nichols' admission of contempt before Ms Obi, but I consider it late. There seems to be room för some doubt about exactlv how soon it was after he obtained legal representation, but it was at the door of the court. I take into account insofar as I am able to the limited evidence put forward in personal mitigation, as I have set out. I reduce the sentence from my starting point to five months' immediate imprisonment.[17]Mr Nichols. please will you stand? I am passing a sentence on you of immediate custody of five months in prison. This is a sentence not for ticket touting but for contempt of court. You have breached a court order in circumstances where it is clear that you have not taken it seriously enough. You have thwarted the purpose of the court and harmed a party to which the court has given its protection. You have also inevitably harmed the wider public interest in the administration of justice. You must now leave the court with the Tipstaff to begin your sentence. TipstafT staff.[20]guilty plea and I accept my Lady has found that the guilty plea was not made at the first available opportunity but the Court of Appeal is vety clear that that is the first available opportunity. That is certainly what Lane J said and did in this matter. There can be no earlier opportunity to plead. This is not a case where you arrive at a police station having been arrested and you are given legal representation at the police station for free. The only time Mr Nichols got legal representation was shortly before this matter came before the High Court, one day. There was an admission in an email to the defence solicitors and an admission on the day itself. It could not have been any earlier but you have only given a 17 per cent reduction in relation to all factors.[21]My Lady, you have not given any reduction at all on the basis of what we know of the case where this was a case where the person has come to the defendant and sought a ticket from them. That was the admission basis. If my Lady has taken a different admission basis that evidence should have been tested before the court. The hearsay evidence should have been allowed. The defendant is entitled to make his admission on the facts that he admits on. It cannot without a trial happening be said that he admitted that otherwise. So, my Lady, there is a distinct one quarter missing from the reduction on sentence. There is, further, a quite harsh reduction for guilty plea and there is nothing in relation to mitigation at all on the bare rims(?) of how I recorded your judgment.[22]My Lady I appreciate this is difficult. I would only add to that that the Court of Appeal may be minded in the circumstances to review your judgment and as such I would ask that bail is granted pending a full appeal to the Court of Appeal on this matter. As you will be aware, permission is automatically granted to the Court of Appeal and the matter will be listed at the very soonest available date. There is no urgency that the defendant should be imprisoned immediately, save for that sentencing should be actioned. I have identified at least something that might (inaudible) strongly. As I say, there may have been an error in your judgment and that is all I need to do before you. If my Lady believes that there may be such an error then bail would be inevitable in the matter. I appreciate you will say there is not an error but in these circumstances this is a case where permission is not needed to the Court of Appeal, the (inaudible) of that right. My Lady, that is what I say on bail.Approved Judgment
[23]The effects of not granting bail are catastrophic if the defendant were found to be (inaudible) at all. That would have a (inaudible) never have been (inaudible). My Lady, as far as I am aware Mr Nichols has not been sent to prison in his adult life. He was sentenced as a youth. At his age prison is catastrophic (inaudible) at Pentonville but it is by far one of the least pleasant prisons we have within the (inaudible). I am sure you aware more than most of Pentonville. All I can say is this is a case where the Court of Appeal may well be willing to reduce his sentence. It is a short sentence, I accept, in the grand scheme of things but it is one that I think further reduction should be made.[24]My Lady, unless I can assist you further with submissions on that I would just urge that bail is granted pending application to the Court of Appeal which will be made within 72 hours. sMR TEAR: In relation to bail?
[26]My Lady, it is simply getting the matter into the Court of Appeal under such short circumstances. It is unlikely to happen in terms of getting them to be able to deal with the matter and obviously we are very much on the backfoot not having a transcript and that is why I have asked for the court's mercy effectively to grant a stay in this matter. MS COLLINS RICE: Well how long would it take to get a transcript? which will always be (inaudible) it will not be (inaudible) still be listed for (inaudible)[28]Digital Transcription by Marten Walsh Cherer Ltd.,[29]2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A I HP. Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE Email: Web:
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