B4/2005/0933
Neutral Citation Number: [2005] EWCA Civ 935
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GUILDFORD COUNTY COURT
(HIS HONOUR JUDGE SLEEMAN)
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday, 12 July 2005
B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

LORD  JUSTICE  THORPE

LORD  JUSTICE  LLOYD

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B E T W E E N:

ROBERT  MURRAY
Appellant
and

KATE  LOUISE  ROBINSON
Respondent
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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
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MR CHRISTOPHER POOLE (instructed by Messrs Fulchers, Surrey GU21 5AB) appeared on behalf of THE APPELLANT

THE RESPONDENT was not present and was not represented
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J U D G M E N T
Tuesday, 12 July 2005

THE LORD CHIEF JUSTICE:  

Introduction

1.	This is an appeal by Mr Robert Murray against an order of His Honour Judge Sleeman made on 18 April 2005 at the Guildford County Court as a result of a finding that Mr Murray had been guilty of three breaches of a Non‑Molestation and Occupation Order dated 3 December 2004.  His Honour Judge Sleeman sentenced him to eight months' imprisonment for each breach, those sentences to run concurrently.  So he is to serve an eight month sentence in total.  He now appeals against those sentences.  Mr Poole appears on his behalf and his contention is that the sentences are excessive.  
 
The Constitution of this Court 

2.	Thorpe LJ was good enough to indicate to me that in his very long experience this is probably the first time that the Chief Justice has presided over appeals from the Family Division.  The explanation for my presence can be linked to the constitutional changes made by the Constitutional Reform Act 2005.  The effect of that Act, the relevant provisions of which come into force in April 2006, is to change the role of the Lord Chief Justice of the day.  Because of the transfer of powers to him from the Lord Chancellor, the Lord Chief Justice will then become not only the professional head of the judiciary, but the constitutional head as well.  In that role he becomes the senior judge of all the courts in England and Wales, including the Family Division.  In view of that fact it appeared, at least to myself and, it is my understanding that the same approach will be adopted by my successor, it is intended that the Chief Justice should sit from time to time on hearing appeals from the Family Division.  The nature of this appeal emphasises the benefit of such a practice in certain cases.  Although the background to this case is the family proceedings before His Honour Judge Sleeman exercising a family jurisdiction, the order which he made of a sentence of imprisonment which has a relationship with the more usual jurisdiction of the Chief Justice which is exercised in the Criminal Division, as opposed to the Civil Division, of the Court of Appeal.  It is appropriate that the approach to sentencing for contempt for non‑compliance with an order of the court should take into account the approach to sentencing in the Criminal Division.  That is a matter to which I will refer again later in the course of this judgment.  One authority to which it will be necessary to refer is Head v Orrow [2004] EWCA Civ 1691, a decision of the Court of Appeal, on appeal from the High Court of Justice, Family Division.  
 
The Facts 

3.	Mr Murray and the respondent, Miss Robinson, who is not present but has written a letter to the court, commenced a relationship in 2003.  Thereafter, according to Miss Robinson, Mr Murray was consistently violent and abusive towards her.  His conduct resulted in him being imprisoned for three months from June to August 2004.  Following his release from prison, he committed criminal damage at Miss Robinson's place of residence and continued to threaten her.  
 
4.	At the suggestion of the police, Miss Robinson took out an injunction against Mr Murray.  Sensibly, she applied for it without a notice of application to Mr Murray on 3 December 2004.  Her application was heard by District Judge Kubiak.  She granted an injunction under the Family Law Act 1996 of one year's duration.  The order forbade Mr Murray to go within 100 metres of Miss Robinson's address.  It also forbade him from using or threatening violence against Miss Robinson, or encouraging anyone else to do so.  Finally, it forbade Mr Murray from intimidating, harassing or pestering Miss Robinson, or encouraging anyone else to do so.  Attached to the order was a power of arrest.  
 
5.	Seven weeks after the order Mr Murray breached it by letting himself into Miss Robinson's address with his own keys.  On 7 February 2005 he was sentenced to four months' imprisonment by His Honour Judge Rylance for that offence.  His contempt was purged by him on 21 March 2005.  He was then discharged from custody.  Although we have no record of what happened when he made his application to purge his contempt, it can be assumed that he must have made it clear to the court that he would not further harass Miss Robinson.  
 
6.	On 9 April 2005, shortly after he had purged his contempt, Miss Robinson was at her parents' home.  Mr Murray was alleged to have rung her on her mobile phone and said, "It's me, don't hang up".  Miss Robinson did hang up.  She remained at her parents' home until about 12.50am.  On returning to her own home she saw Mr Murray standing on the path leading up to her house.  She immediately drove away.  Mr Murray gave chase.  She stopped a short distance from her house and called the police.  Mr Murray later sent her two text messages.  The first, which was in text code, said something like, "You've just signed your death wish".  The second said, "You've been with someone else, you fucking slag (or slut)", or words to like effect.  Mr Murray was subsequently found by the police sleeping on a bench at Farnham Railway Station.  He was clearly intoxicated and he was arrested.  The matter came back before the district judge, who remanded Mr Murray in custody until 18 April.  
 
7.	On 18 April His Honour Judge Sleeman heard the matter.  Mr Murray denied visiting Miss Robinson's home, but admitted sending the first threatening text message to her.  There was some dispute as to whether he admitted or denied sending the second text message.  His evidence was that he had admitted it before the district judge, but notes of that hearing indicated that he denied sending it.  Mr Murray's case was that Miss Robinson had visited him in prison on more than one occasion, had written letters to him there and had also visited him at an address, causing him to believe that their relationship was alive.  The judge was concerned that Miss Robinson was leading Mr Murray to believe that the relationship would continue.  If that was so, that would have a bearing on the appropriate sentence, albeit that he still would have breached the order which had been made by the court.  The judge therefore heard the evidence.  He found that on the date that Mr Murray said that Miss Robinson had visited him, she was in fact at home with her parents.  He also found that Miss Robinson had visited Mr Murray once in prison.  This was to hear his explanation as to his past behaviour rather than to attempt a reconciliation.  The judge found that Mr Murray had lied about Miss Robinson's visits and about sending the second text message.  Miss Robinson had also been guilty of being economical with the truth because initially she had denied seeing Mr Murray at all.  Clearly she had visited him in prison.  That matter was before the judge thanks to the industry of Mr Norris, who appeared for Mr Murray at the last moment on the hearing on 18 April.  Having looked at the transcript of that hearing, I commend Mr Norris for the admirable way in which he represented Mr Murray at short notice.  
 
8.	Representations were made by Mr Norris on behalf of Mr Murray drawing attention to the fact that he had had an extremely disadvantaged childhood and that he also had difficulties from the fact that he had had previous relationships in consequence of which he had three children.  He had also been adversely affected by the fact that Miss Robinson lost a child who was stillborn after an eight month pregnancy.  Reference was made to Mr Murray's service in the Territorial Army.  
 
9.	Mr Murray's record includes, quite apart from the breach of the present order on two different occasions, an offence of common assault on a different partner's ex‑boyfriend, for which he was sentenced to six months; an assault committed on Miss Robinson; the assault for which he was sentenced to three months' imprisonment; and an offence of criminal damage when he smashed three windows at Miss Robinson's property, for which he received a conditional discharge.  It is clear, having regard to his record, that when drunk he becomes violent.  Looking at the matter as a whole there is no doubt that from time to time he was guilty of very frightening and threatening conduct towards Miss Robinson.  In her letter to the court she says:  
 
		"I am not writing this because I wish to be vindictive, but to make the point that Robert Murray's violence towards me and repeated breaches of court orders by him have left me anxious for my own safely and living in fear.  I would be grateful if you would consider the content of this letter when making the judgment."  
 
We take into account what she says in her letter.  
 
10.	In support of the appeal Mr Poole refers to various matters in his helpful skeleton argument.  Those matters were developed in the course of his oral argument.  He drew attention in particular to the appellant's background.  He drew attention to the fact that before the judge it was indicated that the appellant intended to return to Scotland.  The judge said that he would be well advised to do so.  This court has no doubt that that would be the sensible course.  Clearly living in the vicinity of Miss Robinson will result in his again being put into positions where he will, wholly unjustifiably, react in an inappropriate way and subject her to fear of violence.  
 
The Law

11.	The proceedings in this case were brought under the Family Law Act 1996.  There is an alternative course which can be taken, as was made clear by this court in Lomas v Parle [2003] EWCA Civ 1804, [2004] 1 All ER 1173, [2004] 1 WLR 1642.  The position was also considered in the more recent decision of this court in Head v Orrow.  In that case May LJ, who gave the judgment of the court, surveyed in similar but more serious circumstances the appropriate approach.  In that case there were also proceedings in relation to an order made under section 42 of the Family Law Act 1996.  In addition the court was concerned with the Protection from Harassment Act 1997.  The choice of procedure is important because of the increased powers of punishment contained in the 1997 Act.  The 1996 Act limits the maximum penalty to two years' imprisonment under the Contempt of Court Act 1981, whereas under the Protection from Harassment Act 1997 there are different circumstances where a maximum punishment of five years' imprisonment is available to the court.  The jurisdiction of the court under the 1997 Act is both by way of ordinary criminal proceedings and by way of civil proceedings.  

12.	The fact that there are two different jurisdictions is relevant when considering the appropriateness of the level of sentencing in the case of proceedings under the 1996 Act.  It has been said, understandably and appropriately (subject to what I will say hereafter) that in sentencing for breaches of orders which amount to contempt, the court should bear in mind that the maximum sentence is two years because there is a very wide range of conduct which constitutes contempt and obviously the higher sentences must be reserved for the most serious cases.  The ability to impose significant sentences for contempt is therefore restricted, except in the case of the worst offences if the proceedings are brought under the 1996 Act.  

13.	The position is not so constrained if proceedings are brought under the 1997 Act.  In general the view may be taken that if a case warrants a sentence near the top of the range the appropriate course is probably to bring proceedings under the 1997 Act so that the greater powers of punishment are available to the court.  That course is desirable because, rightly, courts today take a much more serious view of conduct of the sort demonstrated in this case.  

14.	It was pointed out by Mr Poole in his skeleton argument that the appellant's conduct for which he was before His Honour Judge Sleeman did not involve any actual violence.  However, whether or not there is actual violence, it must be recognised by the courts that the sort of conduct which took place here causes very great distress and anxiety to the partner of an offender.  

15.	Although Mr Poole is entitled to say that there was no violence in this case, I do not consider that that is in any way in itself sufficient to reduce the gravity of the matter.  This is particularly true where the conduct occurs in or close to the victim's home.  The feeling of insecurity created may be very considerable.  In this connection we consider that it is important that Head v Orrow receives the attention which it deserves.  From the limited researches that we have been able to make, our understanding is that that case has not been reported.  It should be reported.  It contains valuable guidance to the appropriate approach to cases of this sort.  It is unnecessary in this judgment for me to do more than draw attention to the paragraphs which deal with the decision in Lomas v Parle, starting at paragraph 29, and particularly to extracts from the judgment of Thorpe LJ in that case.  

16.	I also draw attention to the decision in Liddle v Hayes [1999] 3 All ER 816, and to the discussion and reasons for the decision in that case which appear at paragraphs 37 onwards.  I would draw particular attention to paragraphs 37 which says:  
 
		"In our judgment, the level of sentences in cases which preceded the Protection from Harassment Act 1997 (and perhaps in some later cases) does not fully reflect contemporary requirements and opinion.  We think that Parliament and society generally now regard domestic and other violence associated with harassment and molestation as demanding rather more condign deterrent punishment than formerly.  In a somewhat different context, contemporary judicial opinion may be seen in the decision of this court in four appeals ...."  
 
Those decisions are cited and it is not necessary to refer to the remainder of that paragraph.  
 
17.	I agree with and would endorse what is said about the level of sentencing generally in paragraph 37.  The judgment went on to say:   

		"39.  In our judgment, sentences in committal proceedings for breaches of injunction under section 42 of the 1996 Act should, so far as possible, reflect this range of opinion.  The qualifications to this to which Thorpe LJ referred in Lomas v Parle of course remain.  In particular, there must be proportionate regard to the statutory maximum sentence in section 14 of the Contempt of Court Act 1981.  Great care must be taken, if there are concurrent criminal or civil proceedings, to ensure that sentences in two or more courts do not punish twice for the same thing."  
 
Having referred to what Thorpe LJ said in Lomas v Parle, the judgment continues:  
 
		".... so far as possible sentences passed under section 42 should not be manifestly discrepant with sentences for harassment charged under the 1997 Act."  
 
Reference was made also to the fact that in due course regard will have to be had to the Domestic Violence, Crime and Victims Act 2004.  Not all the provisions of that Act are yet in force.  
 
18.	In this connection it is worthwhile drawing attention to the purpose of sentencing which are set out in the Criminal Justice Act 2003, section 42 of which provides:  
 
		"Any court dealing with an offender in respect of his offences must have regard to the following purposes of sentencing:  
 
			(a)	the punishment of offenders; 
 
			(b)	the reduction of crime; 
 
			(c)	the reform and rehabilitation of offenders; 
 
			(d)	the protection of the public; and  
			(e)	the making of reparation by offenders to persons affected by their offences."  
 
19.	That is a powerful approach to the purpose of sentencing to that identified by Hale LJ in Hale v Tanner [2000] 2 FLR 879.  In that case Hale LJ identified the general considerations that should be applied when sentencing.  She also identified the purpose of sentencing.  It seems to me that the considerations that she identified and the purposes of sentencing to which she referred are not affected by the later authorities.  At paragraph 25 she identified the special considerations that are relevant in the context of family cases.  She said:  
 
		"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.  ....  
 
		2.  Having said that, first, 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 breaches of an order."  
 
20.	I would respectfully agree with those comments.  In this area, as in other areas, imprisonment needs to be reserved for those cases where imprisonment is necessary.  It must be appreciated that there are other ways of dealing with problems of the sort that occur in the breakdown of a family relationship where imprisonment will not provide a long‑term solution.  Alternatives may be more appropriate.  Alas, the available alternatives in the case of proceedings under the 1996 Act are limited.  Court may suspend sentences.  That may be a constructive course.  But the court has nothing like the alternatives that are available to the criminal courts.  Nonetheless, the purposes that I have already identified as being those of criminal proceedings in section 142(1) can be seen as being very relevant in this area as well.  Their purpose is to punish offenders.  The court should be concerned to reduce crime.  The breach of an order of the court in this context is a crime.  The reform and rehabilitation of those who offend is important.  The court must be mindful of the need to protect the public.  If it is seen to ignore acts of contempt in this context, the message will be sent out that other partners will be at risk in the same way as the victim in this case.  It is also true that the making of reparation is desirable, but that may be more difficult to achieve in this context.  In addition, it seems to me that section 143 of the same Act, which sets out factors relevant to considering the seriousness of the offence may also be relevant.  Indeed so may also the reduction in sentences for guilty pleas.  It is desirable in this area, as in criminal proceedings, that an offender who breaches an order should show repentance and remorse.  One way he can do that is by admitting his responsibility.  
 
Conclusion

21.	In this case reliance is placed on the fact that there was an admission of certain of the matters of which Miss Robinson complained.  However, having said that and looking at the sentence which was imposed by His Honour Judge Sleeman in the context of the facts of this case, it seems to me that it is quite impossible to say that the punishment of eight months' imprisonment was excessive.  Quite clearly and quite sensibly His Honour Judge Sleeman did not distinguish between the three breaches, but imposed the same sentence for each.  The fact that the same sentence was imposed in relation to the one where there was an admission does not mean that His Honour Judge Sleeman did not have that matter in mind.  Having looked at what he said, I am satisfied that he took into account all the relevant considerations.  The sentence that he imposed was appropriate.  I would dismiss this appeal.  
 
22.	LORD JUSTICE THORPE:  I agree that this appeal should be dismissed for the reasons given by my Lord.  I also much welcome my Lord's introductory words.  
 
23.	LORD JUSTICE LLOYD:  I also agree that the appeal should be dismissed.  
 
	ORDER:	Appeal dismissed; detailed assessment of the appellant's costs.