Hale v Tanner (Practice Note)

Sentencing for contempt in family proceedings requires consideration of the seriousness of the breach, disapproval of disobedience and the need to secure future compliance. Imprisonment is not automatic, although it may be imposed for a first breach. Any committal term must be assessed independently of suspension and bear a reasonable relationship to the two-year maximum. Suspension and its duration require separate consideration. Family circumstances, admissions, previous warnings and overlapping proceedings may affect the appropriate sanction. Courts should avoid double punishment for the same events and ordinarily explain their sentencing choices briefly. Criminal sentencing provisions do not supply a generally applicable regime for contempt. These principles do not establish prescribed sentences for particular breaches.

Jamie Hale obtained a non-molestation order against Rachel Tanner, his former partner, in the Oxford County Court on 21 January 2000. The order prohibited intimidation, harassment, pestering and threats of violence until 21 January 2001. A power of arrest was attached. Ms Tanner, who had a young daughter, had neither attended the hearing nor obtained legal advice about the order.

Following numerous telephone calls to Mr Hale on 16 February 2000, Ms Tanner was arrested and brought before Judge Wilson on 3 April 2000. She admitted breaching the order. The judge imposed six months’ imprisonment, suspended on compliance with the underlying order. The recorded suspension ended on 3 October 2000, although the judge intended it to last until 21 January 2001.

On the same day, separate proceedings under the Protection from Harassment Act 1997 concerning Teresa Mahoney, Mr Hale’s subsequent partner, resulted in a restraining order protecting both of them. Ms Tanner appealed against the committal term as manifestly excessive and challenged the discrepancy in the recorded suspension. The appeal also raised the appropriate approach to sentencing for contempt in family proceedings.

Appeal allowed unanimously. Per Hale LJ, with whom Sir Christopher Slade and Swinton Thomas LJ agreed, the six-month committal term was excessive. It was reduced to 28 days. The suspension was corrected to expire on 21 January 2001.

1. There was no general principle requiring criminal sentencing provisions to be applied to contempt proceedings. Contempt involved more varied circumstances and objectives. The guidance given was confined to family cases, where heightened emotional tensions and the possible need for continuing contact between family members required particular consideration. The court declined to prescribe sentences for particular breaches without an adequate comparative exercise.
2. An application to commit did not make imprisonment the automatic consequence of a breach. There was no prohibition on imprisonment for a first breach: Thorpe v Thorpe [1998] 2 FLR 127. Nevertheless, another course was commonly appropriate on the first occasion. Depending on the circumstances, the court could consider making no order, adjourning, imposing a fine, requisition of assets or mental health orders. Alternatives particularly merited consideration where actual violence had not been proved.
3. If imprisonment was appropriate, its length had to be assessed independently of suspension. Suspension could not justify a longer term. The term should reflect both disapproval of disobedience and the need to secure future compliance, as well as the breach’s intrinsic gravity. It also had to bear a reasonable relationship to the two-year maximum. Suspension was available more widely than in criminal proceedings and was commonly the first means of securing compliance. Its duration required separate consideration and could appropriately follow the duration of the underlying order.
4. The family context could aggravate or mitigate the contempt. Concurrent proceedings involving overlapping facts could not be ignored, and the court should avoid effectively punishing the contemnor twice for the same events. It would ordinarily be desirable to explain briefly the choice of imprisonment, its length and any suspension. Although the judge had clearly explained the importance of compliance, he could have explained his sentencing choices more fully.
5. The history of harassment was upsetting and damaging, but the particular breach involved unpleasant telephone calls without an immediate threat. Six months compared unfavourably with reported sentences for substantially more serious breaches. The immediate admission, first breach, absence of previous oral warnings or legal advice and responsibility for a very young child supported reduction to 28 days. Linking suspension to the underlying order was appropriate.
6. By way of further guidance, section 47(2) of the Family Law Act 1996 left discretion over which provisions attracted a power of arrest. The statutory presumption did not make attachment to every prohibition inevitable. Distance harassment did not necessarily require the same response as violence, direct threats or stalking.

• Court of Appeal: In [2000] EWCA Civ 5570 , unanimously allowed the appeal on 20 July 2000. Reduced the committal term from six months to 28 days and corrected the suspension to expire on 21 January 2001.
• Oxford County Court: On 3 April 2000, Judge Wilson imposed six months’ imprisonment following an admitted breach of the non-molestation order. The recorded suspension expired on 3 October 2000, although his remarks intended suspension until 21 January 2001.
• Oxford County Court: On 21 January 2000, Judge Hall made the underlying non-molestation order, with a power of arrest, lasting until 21 January 2001. Ms Tanner did not attend but service of the application was recorded.