McKnight v Northern

Before imposing imprisonment for contempt, a judge must pause after determining liability and invite submissions in mitigation. Committal serves both to punish a past breach and to secure future compliance. The sentence must reflect the gravity of the conduct and the fact that it involved a blatant breach of a court order.

Where time spent on remand will not be deducted automatically from a contempt sentence, the sentencing judge should ordinarily allow for it. If the term served is reduced automatically by one half, the allowance should be doubled to give practical effect to the period already spent in custody.

The appellant breached a recently imposed non-molestation order protecting his former partner. After hearing evidence, His Honour Judge Holt found three groups of allegations proved and immediately committed the appellant to prison for four months.

The appellant challenged the sentence, principally because the judge had neither paused nor invited mitigation before imposing it. He also relied on his absence when the order was made, the parties’ dispute about contact with their daughter, the asserted absence of actual violence and the respondent’s subsequent communications with him. A further issue arose because his week in custody on remand was not to be deducted automatically from the committal term.

1. Appeal allowed in part. Lady Justice Hale, giving the judgment with which Lord Justice Chadwick and Lord Justice Ward agreed, held that a judge who has found contempt proved must pause before sentencing and invite observations in mitigation. Contempt sentencing is difficult and sensitive, particularly in family proceedings. The relevant considerations were identified in Hale v Tanner [2000] 2 FLR 879.

2. Contempt proceedings have two purposes: punishing the breach already committed and securing future compliance. Punishment must reflect both the gravity of the conduct and its commission in blatant breach of a recently imposed court order.

3. The failure to invite mitigation did not otherwise justify interference. The appellant knew of the proceedings in which the non-molestation order was made and could not benefit from having failed to attend. No evidence established a real risk of double punishment through criminal proceedings. The dispute about child contact did not mitigate threatening behaviour. Nor was it accurate to characterise the conduct as involving no violence: although there was no direct physical violence against the respondent, the appellant damaged her car and behaved in a manner calculated to cause very considerable fear.

4. The respondent’s later willingness to permit supervised contact and her affectionate letter were consistent with her continuing fear of the appellant. The appellant had denied the conduct and offered neither an apology nor an assurance of future compliance. There was therefore no mitigation which would have led the court to interfere generally with the four-month term.

5. The appellant had nevertheless spent one week on remand. Although section 67 of the Criminal Justice Act 1967 ordinarily provided for automatic deduction of remand time, section 104 excluded this form of committal from the relevant definition of a sentence of imprisonment. Where remand time will not be deducted automatically, it should ordinarily be allowed for when sentencing for contempt. Because the custodial term was reduced automatically by one half, the allowance had to be doubled. The four-month sentence was therefore reduced by 14 days.

1. Court of Appeal (Civil Division): The appeal was allowed only to the extent that the four-month committal term was reduced by 14 days to reflect one week spent on remand which would not be deducted automatically.

2. Norwich County Court: His Honour Judge Holt found three groups of breaches of the non-molestation order proved and committed the appellant to prison for four months.