THE NEW COMMITTAL PROCEDURE: DOES NOT AFFECT THE COURT’S SENTENCING POWERS: DEFENDANT SENT TO PRISON

Oliver v Shaikh [2020] EWHC 2658 (QB) may be the first time the new rules as to committal proceedings have been mentioned in a judgment.  However the purpose was to make it clear that the new rules do not make any changes to principles relating to sentencing after a finding of contempt.

 

THE CASE

The defendant had been found guilty of contempt at an earlier hearing. The defendant did not attend the hearing in relation to sentence.

THE JUDGE’S OBSERVATION AS TO SENTENCING AND PROCEDURE

Mr Justice Nicklin considered the new rules.

    1. A new CPR Part 81 came into force on 1 October 2020. In terms of the punishment phase, the position has not substantially changed. CPR 81.9 now provides:

“(1) If the court finds the defendant in contempt of court, the court may impose a period of imprisonment (an order of committal), a fine, confiscation of assets or other punishment permitted under the law.

(2) Execution of an order of committal requires issue of a warrant of committal. An order of committal and a warrant of committal have immediate effect unless and to the extent that the court decides to suspend execution of the order or warrant.

(3) An order or warrant of committal must be personally served on the defendant unless the court directs otherwise.

(4) To the extent that the substantive law permits, a court may attach a power of arrest to a committal order.

(5) An order or warrant of committal may not be enforced more than two years after the date it was made unless the court directs otherwise.”

    1. The changes to the procedural rules in CPR Part 81 have not affected previous authorities as to the approach to penalty that the Court should adopt.
    2. The decision on sanction is entirely for the Court (Attorney General -v- Hislop [1999] 1 WLR 514, 522). Similar to the role of the prosecution in a criminal court where the Court is considering sentence, the party seeking punishment of the contemnor does not urge the imposition of any particular penalty on the contemnor. The role is limited to making submissions as to the circumstances and the consequences of the breach and ensuring that the court’s attention is drawn to all relevant authorities.
    3. The following principles can be derived from Crystal Mews Limited -v- Metterick [2006] EWHC 3087 [8]–[13]:
i) The object of sanction imposed by the court is two-fold: (1) to punish the historic breach of the court’s order by the contemnor; and, (2) to secure future compliance with the order. In my judgment, if those objects in any way conflict in terms of sanction, then the primary objective is to secure compliance.
ii) The sanctions available to the Court range from making no order, imposing an unlimited fine or the imposition of a sentence of imprisonment of up to two years. The Court has the power to suspend any warrant for committal.
iii) As with any sentence of imprisonment, that sanction should only be imposed where the Court is satisfied that the contemnor’s conduct is so serious that no other penalty is appropriate. It is a measure of last resort. A suspended prison sentence, equally, is still a prison sentence. It is not to be regarded as a lesser form of punishment. A sentence of imprisonment must not be imposed because the circumstances of the contemnor mean that he will be unable to pay a fine. A sentence of imprisonment may well be appropriate where there has been a serious and deliberate flouting of the Court’s order.
iv) The Court’s task when determining the appropriate sanction to assess is to assess culpability and harm. The Court will consider all the circumstances, but typical considerations when assessing the seriousness of the contemnor’s breach are:

a) the harm caused to the person in respect of whose interests the injunction order was designed to protect by the breach;

b) whether the contemnor has acted under pressure from another;

c) whether the breach of the order was deliberate or unintentional; and

d) the degree of culpability of the contemnor.

v) Mitigation may come from:

a) an admission of breach – for example, admitting the breach immediately and not requiring the other party to go to the expense and trouble of proving a breach;

b) an admission or appreciation of the seriousness of the breach;

c) any cooperation by the contemnor to mitigate the consequences of the breach; and

d) genuine expression of remorse or a sincere apology to the court for his behaviour.

    1. The mitigating the factors may also have a bearing on the Court’s view as to the likely risk of repetition of breach and therefore the assessment of the degree to which the sanction needs to serve the objective of securing future compliance. If a contemnor, even belatedly, demonstrates a genuine insight into the seriousness of his prior conduct and its unlawfulness, then the Court may well be able to conclude that the contemnor has ‘learned his lesson’ and the risk of future breach is thereby diminished.
    2. In Financial Conduct Authority -v- McKendrick [2019] 4 WLR 65, the Court of Appeal stated:

[40] Breach of a court order is always serious, because it undermines the administration of justice. We therefore agree with the observations of Jackson LJ in [JSC BTA Bank -v- Solodchenko (No.2) [2012] 1 WLR 350] … as to the inherent seriousness of a breach of a court order, and as to the likelihood that nothing other than a prison sentence will suffice to punish such a serious contempt of court. The length of that sentence will, of course, depend on all the circumstances of the case, but again we agree with the observations of Jackson LJ as to the length of sentence which may often be appropriate. Mr Underwood was correct to submit that the decision as to the length of sentence appropriate in a particular case must take into account that the maximum sentence is committal to prison for two years. However, because the maximum term is comparatively short, we do not think that the maximum can be reserved for the very worst sort of contempt which can be imagined. Rather, there will be a comparatively broad range of conduct which can fairly be regarded as falling within the most serious category and as therefore justifying a sentence at or near the maximum.

[41] As the judge recognised, it may sometimes be necessary for the sentence for this form of contempt of court to include an element intended to encourage belated compliance with the court’s order. Where that is the case, that element of the sentence is in principle one which may be remitted if the contemnor subsequently purges his contempt by complying with the order…

    1. In that latter respect, CPR Part 81.10 now provides:

“(1) A defendant against whom a committal order has been made may apply to discharge it.

(2) Any such application shall be made by an application notice under Part 23 in the contempt proceedings.

(3) The court hearing such an application shall consider all the circumstances and make such order under the law as it thinks fit.”

    1. The effect of this is that where the punishment imposed by the Court contains both elements of punishment for previous breaches and encouragement to belated compliance, the Court may reduce a previously imposed penalty on an application made under CPR 81.10.
Decision
    1. The Defendant’s culpability for the breaches of the Order of 10 December 2019 is extremely high:
i) the breaches began immediately; the Defendant simply refused to comply with the Order to remove the various websites, in particular the JBB Website;
ii) there have been 20 breaches of the order;
iii) the breaches have continued (a) after warnings from the Claimant’s solicitors; (b) after proceedings were issued seeking to punish the Defendant for contempt; and (c) after the Court had found the Defendant in contempt; and
iv) the breaches have been conscious and deliberate.
In summary, the Defendant’s contempt has been deliberate, persistent and blatant. They continue to this day. The Defendant has shown no remorse or insight. On the contrary, he has consciously chosen to disobey and defy the Court’s order and, particularly through his continued publication of the JBB Website, attempted to draw as much public attention to his defiance as he can.
  1. In terms of harm, there are two issues. First, the harm to the rule of law and the authority of the court is very significant. Court orders must be obeyed. If they are not, it corrodes the rule of law. Those who flout the orders of the Court do serious harm to the rule of law. Second, the Order of 10 December 2019 was a protective order to prevent further harassment of the Claimant. The Claimant is a circuit judge. All judges have to expect public scrutiny of their work and potential criticism. But a judge is also a citizen, who is equally entitled to the protection of the law as any other citizen. When the actions of an individual passes from robust criticism to, in this case, menacing threats and abuse that are quite clearly illegal, the citizen is entitled to the protection of the law. The evidence provided to the Court by the Claimant demonstrates the impact this campaign of harassment has had on him.
  2. For the reasons I have explained, this is a very serious example of contempt of court. The defendant clearly considers that he is above the law; that he does not need to comply with orders of the court. He even appears to enjoy his defiance. It is my duty to make clear that he is mistaken and to reassert the authority of the law. I am satisfied that this case is so serious that only a period of immediate imprisonment is sufficient to reflect the culpability of the Defendant and the harm caused by his repeated breaches of the Court’s order. As the Defendant has not attended today, a warrant for his arrest will be issued. When he is apprehended, and subject to any application under CPR 81.10, he will be committed to prison for a period of 16 months.