![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hale v Tanner [2000] EWCA Civ 5570 (20 July 2000) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2000/5570.html Cite as: [2000] 1 WLR 2377, [2000] EWCA Civ 5570, [2000] 2 FLR 879 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
BAILII Citation Number: [2000] EWCA Civ 5570
Case No. B1/2000/0452
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(HIS HONOUR JUDGE HAROLD WILSON)
Royal Courts of Justice
Strand, London WC2
Date: Thursday, 20th July 2000
Before:
LORD JUSTICE SWINTON THOMAS
LADY JUSTICE HALE
SIR CHRISTOPHER SLADE
- - - - - - - - - - - -
(Computer‑aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207‑421 4040/0207‑404 1400
Fax No: 0207‑831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - -
MR J VATER
(Instructed by Darbys Mallam Lewis, 52 New Inn Hall Street, Oxford, OX1 2QA)
appeared on behalf of the Appellant.
MR M BRETT (Instructed by Oxford Law Group, DX 82254, Oxford 2) appeared on behalf of the Respondent.
- - - - - - - - - - - -
JUDGMENT
1. LORD JUSTICE SWINTON THOMAS: Lady Justice
Hale
will give the first judgment.
2. LADY JUSTICE HALE:
This is an appeal
against the order of His Honour Judge Wilson, the Recorder of Oxford, made in
the Oxford County Court on 3rd April 2000. He committed the appellant to prison
for six months but suspended that committal. As recorded in the order, this was
until 3rd October 2000; but as explained in his sentencing remarks, if I may
call them that, it was for as long as she complied with the underlying order.
This was an order made by His Honour Judge Julian Hall, also in the Oxford
County Court, on 21st January 2000. The relevant parts of that order read as
follows:
“1. The respondent, Rachel Tanner,
is forbidden to
intimidate, harass or pester the Applicant, Jamie
Hale,
or to threaten to use
violence
against the Applicant, Jamie
Hale,
whether by herself or by
encouraging any other person to do so.
“2. That there [be] a Power of Arrest attached to the above order.
“3. That Paragraphs 1 and 2 shall remain in force until 21st January 2001.”
3. Accordingly, His Honour Judge Wilson stated his intention that the suspension should last until 21st January 2001.
4. We have not seen any judgment delivered by
His Honour Judge Hall and in practice there may have been none. The order
records that he had read statements from the applicant, Jamie Hale,
dated 17th
December 1999 and 21st January 2000. We have not seen the latter but a
disturbing history is given in the former. The applicant, Jamie
Hale,
was the
appellant’s ex‑boyfriend. They had a relationship for some two years and
lived together in a rented flat until January 1999. Mr
Hale
alleged that while
they were together, the appellant was often
violent
towards him, destroyed or
stole his belongings, drank heavily, took illegal drugs, had mental health
problems, came to the shop where he worked screaming and shouting so that in
the end he lost his job. When he ended the relationship, the appellant told
him that she was pregnant with his child. At first he doubted whether she was
pregnant but she did indeed have a daughter called Paige in July 1999. He also
doubted that the child was his.
5. After they parted, he complained that she
bombarded him with phone calls. He had to change his telephone number. He also,
very
soon thereafter, started a new relationship with Teresa Mahoney. The
appellant made threatening phone calls to her and to her work. After the birth
of the baby, she
visited
their home with her sister and the baby and became
abusive when they said that they were not interested in speaking to her. She
also sent a letter with photographs of the baby.
6. On 7th September, she made many abusive telephone calls to Teresa Mahoney’s mobile phone. There was specific allegation that the appellant phoned her at 17.52 pm and shouted:
“’I’am at Donnington Bridge social club and there is a bloke in here that f**king hates you and Jamie. He is going to f**king kill you both.’”
7. And a later call:
“’No matter what anyone says or does you f**king bitch, I’ve
got Jamie’s kid and he’s fucking paying for it in every way.”
8. There were many other phone calls that same day.
9. On 13th September, it was alleged that the
appellant phoned nine or ten times leaving messages containing unpleasant
threats. The calls continued sporadically throughout September and into
October. Complaints had been made to the police and the police told Mr Hale
they were trying to arrest the appellant for harassing Miss Mahoney. There was
a quiet week at the end of October when he understood that she had been
arrested and charged in relation to Miss Mahoney. The calls started again at
about 7th November. There was a
visit
with the baby and three men to his
sister’s home. There was also a telephone call asking whether anyone in the
family had a heart condition as the baby was in hospital with a heart problem.
He had reason to believe that that was untrue but it was upsetting because his
father had had heart problems.
10. In his statement he says that the relationship with Miss Mahoney ended in November because of the strain, although they later did resume their relationship. There were more telephone calls around his birthday in early December. Eventually, therefore, an application for a non‑molestation order and a power of arrest, under Part IV of the Family Law Act 1996, was made dated 17th December 1999.
11. When the matter came before His Honour Judge Hall on 21st January 2000. It is scarcely surprising that he made a non‑molestation order upon that evidence. The appellant did not attend the hearing and was not represented at it. However, the order records there was an affidavit of service, proving that the application had been served upon her. The power of arrest, therefore, fell to be considered under section 47(2) of the Family Law Act 1996. This reads:
“If (a) the court makes a relevant order; and (b) it appears
to the court that the respondent has used or threatened violence
against the
applicant or a relevant child, it shall attach a power of arrest to one or more
provisions of the order, unless the court is satisfied that in all the
circumstances of the case the applicant or child will be adequately protected
without such a power of arrest.”
12. The power of arrest made that day records
that the court was satisfied that the appellant had used or threatened violence
against the applicant. The power of arrest was, however, attached to the whole
of the non‑molestation order.
13. I would not wish to criticise that in any
way, I would only comment that section 47(2) clearly contemplates that the
court has a discretion as to which parts of the order should or should not
attract a power of arrest. There is, of course, a presumption in favour of a
power of arrest unless the court is satisfied that the applicant will be adequately
protected without it. But, clearly, there are distinctions to be drawn between
cases where what is prohibited is the direct use of violence,
or the face‑to‑face
threat of
violence,
or the stalking of somebody and the lurking outside their
premises; the sorts of conduct which can readily be prevented by a power of
arrest and for which such a power may well be appropriate. It is less obvious
that distance harassment should necessarily attract a power of arrest in every
case.
14. The evidence presented to the learned judge on this occasion was of prolonged and persistent harassment which had had most unfortunate effects upon the applicant and upon Miss Mahoney.
15. Thereafter, the order was apparently served.
We have not seen an affidavit of service but the applicant, Mr Hale’s,
witness
statement to the police made on 17th February 2000 says that it was served on
6th February 2000.
16. In that statement, the applicant complained that the appellant had contacted him ten times during the previous week but the worst occasion was on the night of 16th February 2000. He said that the appellant had telephoned his mobile phone and wanted to talk about the baby. He did not wish to talk. They had five telephone conversations and she made a total of 41 telephone calls to his mobile phone over the course of some two hours, until he eventually turned it off. The British Telecom record supports that.
17. He complained to the police the next day. The
appellant was not, however, arrested until 3rd April when a police officer was
telephoned by Mr Hale
to say that the appellant was at Oxford Magistrates’
Court and the case was due to finish. The police officer therefore went to the
court and arrested her and she was immediately taken before His Honour Judge
Wilson in the county court.
18. We have been told today, and in my view
it is
relevant to this appeal, that the proceedings in the Oxford Magistrates’ Court
were under the Protection from Harassment Act 1997 and related to complaints of
harassment of Teresa Mahoney, between the dates of 8th April 1999 and 29th
December 1999. Thus, there is some overlap between the subject matter of these
proceedings and the subject matter of those Magistrates’ Court proceedings. The
outcome, we are told, was a restraining order prohibiting the appellant from
contacting either Miss Mahoney or Mr
Hale.
19. In the county court, the appellant admitted disobeying the order of 21st January 2000 by telephoning the applicant on 16th February 2000 between the hours of 9.40 pm and 11.40 pm. She was sentenced, as I have said, is six months’ imprisonment, suspended for one or other of the two periods mentioned.
20. On appeal, the main contention advanced by Mr
Vater
on her behalf is that a sentence of six months’ imprisonment was
manifestly excessive in the circumstances. The mitigating factors that he
suggests should be taken into account are: firstly, that there had been a full
admission, which he argues should be treated as equivalent to an early plea in
a criminal case; secondly, this was the first and only breach of the order;
thirdly, the appellant had not been present in court when the order was made
and had taken no legal advice about it or its implications, and so had not
received what might be called the usual oral face‑to‑face warning
that often applies in these cases; and fourthly, that she is the mother of a
young baby and there will obviously be hardship if the suspended sentence is
activated.
21. He also argues that the court in committal proceedings should apply similar principles to those applicable in the criminal jurisdiction. In particular, the court should observe section 48 of the Criminal Justice and Public Order Act 1994 and state that it has taken into account the admissions made. Also by analogy it should apply the concepts of the Criminal Justice Act 1991, sections 1, 2 and 3. That is that the court should not pass a custodial sentence unless the offence was so serious that only such a sentence could be justified; secondly, that this should be only for such term as is commensurate with the seriousness of the offence, and thirdly, that the court should take into account all such information about the circumstances of the offence including any aggravating or mitigating factors as is available to it.
22. He also argues that the court should explain the reasons why it is imposing the penalty imposed so that the contemnor knows precisely what the basis is for the choices made by the court. There is also the point that this particular order is defective in that it does not reflect what the judge said in his remarks.
23. The court is aware of a feeling, both amongst practitioners and the judiciary, dealing with cases under the Family Law Act, that there is a dearth of guidance on sentencing for contempt of court. It is brought into particularly sharp focus by the Family Law Act 1996 and by the widened jurisdiction involved. Nevertheless, it would not be appropriate for the court on this occasion to seek to give guidance as to the length of sentences that should be contemplated for particular types of breach. I say that because the sort of exercise which would normally be appropriate to such guidance has not been conducted in this case. We have not been presented with tables of comparables, derived from other reported cases or indeed from the practice in County Courts up and down the country, which would make that possible.
24. Furthermore, I would not wish to suggest that
there should be any general principle that the statutory provisions relating to
sentencing in ordinary criminal cases should be applied to sentencing for
contempt. The circumstances surrounding contempt cases are much more various
and the objectives underlying the court’s actions are also much more
various.
There are, however, some points which it may be worth making.
25. In making those points I would wish to emphasise that I do so only in the context of family cases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.
26. Having said that, firstly, these cases have
to come before the court on an application to commit. That is the only
procedure which is available. Not surprisingly, therefore, the court is
directing its mind to whether or not committal to prison is the appropriate
order. But it does not follow from that that imprisonment is to be regarded as
the automatic consequence of the breach of an order. Clearly it is not. There
is, however, no principle that imprisonment is not to be imposed at the first
occasion: see Thorpe v
Thorpe [1998] 2 FLR 127, a decision of this court.
Nevertheless, it is a common practice, and usually appropriate in
view
of the
sensitivity of the circumstances of these cases, to take some other course on
the first occasion.
27. Secondly, there is the difficulty, as Mr
Brett has pointed out, that the alternatives are limited. The full range of
sentencing options is not available for contempt of court. Nevertheless, there
is a range of things that the court can consider. It may do nothing, make no
order. It may adjourn, and in a case where the alleged contemnor has not
attended court, that may be an appropriate course to take, although I would not
say so in every case. It depends on the reasons that may be thought to lie
behind the non‑attendance. There is a power to fine. There is a power of
requisition of assets and there are mental health orders. All of those may, in
an appropriate case, need consideration, particularly in a case where the court
has not found any actual violence
proved.
28. Thirdly, if imprisonment is appropriate, the
length of the committal should be decided without reference to whether or not
it is to be suspended. A longer period of committal is not justified because
its sting is removed by virtue
of its suspension.
29. Fourthly, the length of the committal has to
depend upon the court’s objectives. There are two objectives always in contempt
of court proceedings. One is to mark the court’s disapproval of the
disobedience to its order. The other is to secure compliance with that order in
the future. Thus, the seriousness of what has taken place is to be viewed
in
that light as well as for its own intrinsic gravity.
30. Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of two years which is available.
31. Sixthly, suspension is possible in a much wider range of circumstances than it is in criminal cases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court’s order.
32. Seventhly, the length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal.
33. Eighthly, of course, the court has to bear in mind the context. This may be aggravating or mitigating. The context is often the break‑up of an intimate relationship in which emotions run high and people behave in silly ways. The context of having children together, if that be the case, cannot be ignored. Sometimes that means that there is an aggravation of what has taken place, because of the greater fear that is engendered from the circumstances. Sometimes it may be mitigating, because there is reason to suppose that once the immediate emotions have calmed down, the molestation and threats will not continue.
34. Ninthly, in many cases, the court will have to bear in mind that there are concurrent proceedings in another court based on either the same facts or some of the same facts, which are before the court on the contempt proceedings. The court cannot ignore those parallel proceedings. It may have to take into account their outcome in considering what the practical effect is upon the contempt proceedings. They do have different purposes and often the overlap is not exact, but nevertheless the court will not want, in effect, the contender to suffer punishment twice for the same events.
35. Tenthly, it will usually be desirable for the
court to explain very
briefly why it has made the choices that it has made in
the particular case before it. One understands all the constraints in a busy
county court, dealing with large numbers of these cases these days, and one
would not wish to impose too great a burden on the judiciary in this respect.
Nevertheless, it would be appropriate in most cases for the contemnor to know
why he or she was being sentenced to a period of imprisonment; why it was the
length that it was; if it was suspended, why the suspension was as it was, but
only
very
briefly.
36. An important part of the exercise is that the contender should understand the importance of keeping court orders, of not breaking them and the likely consequences if they are so broken. There is no doubt that the judge in this case made that part of the exercise entirely plain, whether or not to good effect is another matter, but he might have perhaps devoted three sentences to the earlier part of the explanation.
37. Having said all that, how does it apply in this case? There is no doubt that the conduct as described in the witness statement which I have summarised was extremely upsetting and damaging. This sort of behaviour can have, in many ways, a more troubling effect than more immediate losses of temper. Nevertheless, there is little indication of immediate threat, and when one is looking at the particular breach as opposed to the background, there was no immediate threat. These were telephone calls of an unpleasant nature.
38. It is rare, when one looks at the reported
cases, to find sentences of six 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.
39. The factors also had to be taken into account
that the appellant had admitted it straight away. This was almost a “bang to
rights” case in which the appellant would have been most unwise to have denied
it, given the clear evidence that the phone calls had been made. But she had
not been at court when the original order was made. This was her first
appearance for these proceedings, albeit not for other proceedings. She had
not, therefore, had the benefit of the warnings that are routinely delivered
and we are told she had not, before then, sought legal advice. It was the first
breach and there were the other circumstances, family circumstances, including
the fact that she is the mother of a very
young child who cannot entirely be
left out of account in these proceedings.
40. For all those reasons, I conclude that the
sentence was excessive and in my view it should be reduced to one of 28 days.
41. As far as the length of the suspension is concerned, however, it seems to me that the judge was entirely right in linking it to the underlying order and an underlying order for a period of a year, given the history of this case, was entirely justifiable. I would therefore correct the manifest error in the recording of the order by suspending it to 21st January 2001.
42. SIR CHRISTOPHER SLADE: I agree.
43. LORD JUSTICE SWINTON THOMAS: I also agree.
ORDER: Previous order was excessive and reduced to a sentence of 28 days. The order made today continues until 21st January 2001. There should be a legal aid assessment in relation to costs. Order does not form part of the approved judgment.