Following the recent Court of Appeal decision in Gill v Birmingham City Council  EWCA Civ 608, Alice Richardson reviews the authorities on sentencing in contempt proceedings for breach of injunctions granted to social landlords to prevent anti-social behaviour.
Committal for contempt of court
Breach of an injunction is a contempt of court and punishable with an unlimited fine or imprisonment for a period of up to two years: s.14, Contempt of Court Act 1981.
Pursuant to s.258 of the Criminal Justice Act 2003, a defendant will be released from custody upon serving half of any period of imprisonment imposed in committal cases. In addition, where a contemnor is committed to prison, the court has power to order his discharge prior to completion of sentence where the contemnor purges his contempt (CPR r.81.31).
By CPR 81.29(1) the court making the committal order may also order that its execution will be suspended for such period or on such terms or conditions as it may specify.
There are three main objectives in sentencing the defendant, Solihull v Willoughby  EWCA CIV 699,  HLR 36 at :
- punishment for breach of the court order;
- securing future compliance with it; and;
- rehabilitation of the defendant.
However, there is no tariff for “sentences” for contempt of court. It is entirely a matter for the Judge and every case must inevitably depend upon its own facts: Longhurst Homes Ltd v Killen  EWCA Civ 402 per Hughes LJ, at .
Suspending a sentence
In Hale v Tanner, Practice Note  1 W.L.R. 2377, CA Hale LJ acknowledged, at 2380/D, the “dearth of guidance on sentencing for contempt of court” and set out various factors which require particular consideration when deciding whether to suspend any sentence:
- 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 [2381/C].
- 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 [2381/B].
- 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 [2381/D].
In Re W(B)(An Infant)  2 Ch 50 Lord Denning held, at 56/F, that, where a further breach is alleged a Judge hearing an application to activate a suspended committal order has a discretion whether or not to do so and may substitute some alternative penalty instead.
Even though it may not be best practice to suspend a committal order indefinitely, it is not unlawful to do so: see Griffin v Griffin  2 FLR 44, CA at .
Guidance in ASB cases
There have been a number of decisions of the Court of Appeal which concerned injunctions granted to prevent anti-social behavior (under the old provisions of the Housing Act 1996, or the so-called gang-injunctions granted under the Policing and Crime Act 2009; as yet, none seem to have arisen in the context of the “new” provisions of the Anti-Social Behaviour, Crime and Policing Act 2014). The following authorities in particular provide useful guidance.
In Leicester CC v Lewis  33 H.L.R. 37 (CA), at , in the context of the committal for breach of an ASBI, Clark LJ, held that, inter alia, it was important to have the following particular considerations in mind:
(1) Who was intended to be protected and against what?
(2) How strong was the evidence against the appellant in the original injunction proceedings?
(3) Was the breach of a carefully drafted term or a more general prohibition?
(4) Was the breach deliberate?
(5) How serious was the conduct?
(6) Was the defendant of good character?
In Amicus Horizon v Thorley  EWCA Civ 817;  H.L.R. 43 it was held, at , , that in sentencing a defendant for breach of the terms of an anti-social behaviour injunction made under the Housing Act 1996, the court should consider the guidance issued by the Sentencing Guidelines Council in relation to breaches of anti-social behaviour orders made under the Crime and Disorder Act 1998.
The committal order should reflect the aggravating and mitigating features of the breaches. Aggravating features will include deliberate flouting of the court’s order on repeated occasions and breach of a suspended order for imprisonment. Mitigating features may comprise personal inadequacy, admissions of breach, a low level of anti-social behaviour and efforts to reform: Solihull v Willoughby  EWCA Civ 699,  H.L.R 36 at . The decision in Amicus Horizon v Thorley does not, however, apply to repeat offenders .
Although it is not mandatory to deduct any time spent on remand from a sentence passed on committal it is open to the judge to reflect the period on remand in the total period of imprisonment when passing sentence: R (James) v Governor of Birmingham Prison and others  EWCA Civ 58;  1 W.L.R. 4210.
The conduct complained of in contempt proceedings may well also constitute a criminal offence. In that case, if there is more than one set of proceedings the first court to sentence must not allow for, or anticipate, a likely further sentence. It is for the second court to reflect the prior sentence to ensure that the defendant is not punished twice for the same act: Lomas v Parle  EWCA Civ 1804;  1 W.L.R. 1642 at  (see also Slade v Slade  EWCA Civ 748;  1 W.L.R. 1262).
Gill v Birmingham City Council
In Gill the appellant appealed against a committal order sentencing him to 14 months and 23 days’ imprisonment for breach of an anti-social behaviour injunction (“ASBI”).
In June 2012 the respondent had obtained an ASBI as a result of an alleged seven-year history of domestic violence against the appellant’s ex-partner, with whom he had a child. The appellant repeatedly breached the ASBI and, prior to the proceedings out of which this appeal arose, there were three previous committal orders made in the County Court for which Mr Gill served custodial sentences.
The new proceedings concerned seven alleged breaches, some of which were committed whilst the appellant was on bail. Prior to the proceedings in the County Court the appellant pleaded guilty to criminal charges in relation to some of the incidents in the Magistrate’s Court. At the date of the County Court proceedings he was still awaiting sentencing from the Magistrates.
In the County Court Her Honour Judge Wall found all of the breaches proved and sentenced the appellant to a total of 14 months and 23 days’ imprisonment. The appellant was subsequently sentenced in the Magistrates Court to a six sentence to run concurrently with the sentence ordered by HHJ Wall.
On appeal to the Court of Appeal the appellant contended that:
(1) the judge was wrong to make findings of fact against him on the basis of the evidence of his ex-partner.
(2) she was wrong to sentence him for the breaches which he had pleaded guilty to in the Magistrates’ Court.
(3) the sentence was manifestly excessive.
The Court of Appeal held that:
(1) the judge had been entitled to reach the conclusions she had done.
(2) where there were parallel criminal and civil proceedings regarding the same incidents, the first court should not anticipate or allow for a likely future sentence (Lomas v Parle and Slade v Slade). It was for the second court, which should be fully informed, to sentence in the light of the first so as to ensure that there was no double punishment for the same act.
(3) It was not clear whether, in the later sentencing the magistrates’ court had taken into account the sentence already imposed by the county court in respect of the same offence. There seemed no basis for any sentence relating to those criminal offences where the county court had already punished the breaches. While that could be an argument on appeal against the magistrates’ court order, it did not affect the validity of the sentence for breaches of the injunction.
However, the sentence of 14 months and 23 days was manifestly excessive. The judge had failed to consider that, inter alia, the appellant had pleaded guilty in the magistrates’ court to the two most serious offences. He should have had more credit for those pleas. The Court of Appeal held that the correct sentence was one of 12 months and the appeal was allowed to that extent.
Sentencing in contempt cases remains a difficult task for County Court judges. As in many other appeals of this nature the decision in Gill v Birmingham is predominantly fact-specific. However, it does confirm the position in relation to parallel criminal proceedings and may well assist judges who find themselves in a similar position.
One practical difficulty arising from the fact that those bringing contempt proceedings are not parties involved in the criminal proceedings is that it is often difficult to establish on what basis the Magistrates Court have reached their decision on sentencing. For that reason, it is preferable that the contempt proceedings are dealt with first in order to minimise the potential for defendants being punished twice for the same act.