(Court of Appeal; Ward, Wall and Wilson LJJ; 17 July 2009)
On the making of a residence order in the wife's favour, both parents gave undertakings to court, to last for 12 months. The wife's undertaking, duly signed, was that she would not, whether by herself or by instructing or encouraging any other person, harass or pester the father, specifically, that she would not communicate with him in any way, other than through solicitors. On the father's application to commit the wife for contempt, the judge found that six allegations of contempt had been proven against the wife. The first and most significant concerned an incident in which the wife visited the husband's home. After attempting to disable the CCTV, the wife encouraged the couple's son to break the lock on the garden gate and then to set fire to the husband's motor bike; the fire not only destroyed the bike but also damaged the back of the house and some of its contents. Then the wife herself poured petrol on the husband's car, poured petrol against the front of the house, and attempted, unsuccessfully, to set the petrol alight. The wife was charged with criminal offences in respect of this incident, and was sentenced by the criminal court to probation for 12 months and a compensation order in the sum of £400. In respect of this incident, which the wife admitted in part, the contempt judge sentenced the wife to 18 months' immediate imprisonment. The second contempt concerned the wife sending the husband 117 text messages, many abusive, accusing him of raping the couple's daughter, threatening to expose him for fraud, and detailing his sexual practices. For this the contempt judge sentenced the wife to 21 months' imprisonment. The third contempt concerned the wife completing a direct debit form for £8.50 a month, in favour of RSPCA, giving the details of the husband's bank account rather than her own. For this the contempt judge sentenced her to 12 months' imprisonment. The fourth contempt involved the wife sending four letters to the husband containing threats. For this the contempt judge sentenced her to 12 months' imprisonment. The fifth contempt involved the wife contacting the benefits agency and falsely alleging that the husband was not entitled to disablement benefits. The wife admitted this contempt, and the contempt judge sentenced her to 6 months' imprisonment. Finally, the sixth contempt involved the wife standing outside the husband's home and shouting abuse, including an allegation that the husband was a paedophile. For this the contempt judge sentenced her to 6 months' imprisonment. All the sentences were concurrent, so the sentence of 21 months', the longest sentence, was the primary sentence. The maximum term the judge could have imposed was 2 years. The wife appealed against the sentences.
Conduct was not twice punishable. Notwithstanding comments in Lomas v Parle, a second court should not so much reflect 'the prior sentence' in its judgment, as decline to sentence for such of the conduct as had already been the subject of punishment in the criminal court. It followed that, even if a civil judge were to regard the punishment given by the criminal court for certain conduct as too lenient, it would be improper for the judge to use his power of committal in respect of that conduct in order to top-up the punishment to what he considered to be the proper level. The judge must sentence only for such conduct as was not the subject of the criminal proceedings. The sentence for contempt in relation to the first incident should have related only to (a) such other aspects of the wife's conduct during the incident as had been proved, and which amounted to harassment of the husband and were thus a contempt; and (b) the fact, irrelevant to the criminal proceedings, that the destruction of the motor-bike also amounted to a breach of undertaking, and therefore a contempt. While the seriousness or otherwise of the breach of the obligation to the civil court, whether undertaken or imposed by injunction, would in part be informed by what one might call its context, namely (for example) by whether it was the first breach or the last in a series of breaches, by the existence or otherwise of warnings of the consequences of a breach or further breaches and by the propinquity in time between the creation of the obligation and the breach, it was not clear how much further the judge could go into the circumstances or content of the breach without sentencing for the conduct for which sentence has already been passed. In the most general terms the judge was surely entitled to assess the conduct's gravity, for the graver the conduct, the more serious the contempt of the civil court. But any more profound assessment risked trespassing upon the area for which sentence has already been passed. And, even when the breach was serious, the civil court must rigorously remind itself that, however problematical, its function was to sentence only for the fact of a serious contempt and not for the content of the serious contempt. Further, the contempt court had paid no attention to the requirement set out in Lomas v Parle that the second sentencing court be fully informed of the factors and circumstances reflected in the first sentence. It was not clear what weight the contempt judge had given to the state of the wife's mental health. The judge's sentences were in each of the six cases excessive: the wife should have been sentenced to 6 months for the criminal incident; to 4 months for the abusive texts, especially given the husband's failure to complain about them for many months; to one month for the direct debit; to one month for the letters; to 2 months for the false allegations to the benefits agency, giving the wife credit for the guilty plea; and to 2 months for the shouted abuse outside the husband's home. The total to be served was 6 months' imprisonment. Judges might well find it helpful to consider the maximum term overall that the contemnor should serve for the course of conduct taken as a whole, bearing in mind that their powers were limited to a total of 2 years' imprisonment.