Shipton v Foulkes

A sentence for contempt arising from breach of a protective order marks the seriousness of the breach and the aggravating circumstances. It is not punishment for any underlying criminal offence. Where criminal proceedings may arise from the same facts, the contempt court must take that possibility into account so that the contemnor is not effectively punished twice. Sentencing remains fact-sensitive. Relevant matters include the seriousness and deliberateness of the breach, violence, previous conduct, the contemnor’s age, whether the breach is a first breach with knowledge of the order, injury caused, the statutory maximum, and the need for consistency in like cases.

The respondent obtained a protective order under Part 4 of the Family Law Act 1996. The appellant later entered the respondent’s home, threatened and assaulted her, and was committed for contempt by Mr Recorder Scott QC in the Family Division on 29 November 2000. He sought permission to appeal out of time against a sentence of 12 months’ imprisonment.

The Court of Appeal extended time because the appellant was serving a prison sentence and the sentence required substantive review. The central issues were whether the sentence was excessive and how the possible existence of parallel criminal proceedings should affect the contempt sentence.

1. Appeal and extension of time. The court extended time for appealing, despite the unsatisfactory delay, because the appellant was serving a prison sentence and the merits justified consideration of the appeal.
2. Purpose of contempt sentencing. The breach was exceptionally serious. It involved deliberate entry in breach of the order, threats, terrorising conduct and violence. The sentence for contempt was imposed to mark the court’s appraisal of the aggravated circumstances of the breach. Following N v N (Contempt: Committal) [1992] 1 FLR 370, it was not punishment for any criminal offence which might separately be prosecuted.
3. Parallel proceedings. The possibility of criminal proceedings based on the same facts had to be taken into account. The contempt proceedings and criminal proceedings served different purposes, but the court should avoid the contemnor suffering punishment twice for the same events. This principle was drawn from Hale v Tanner [2000] 2 FLR 879.
4. Sentence. Although the breach justified a substantial prison sentence, the appellant was young, the incident was treated as the first breach of the order with knowledge of its terms, and the respondent fortunately suffered no serious physical injury. The statutory maximum of two years and the need for like justice in like cases were also relevant. A sentence of 12 months was somewhat too long and was reduced to six months.
5. The protective order remained in force and continued to carry a power of arrest. The appeal was allowed to that extent. Detailed assessment of both parties’ public-funded costs was ordered.

• Court of Appeal (Civil Division): Shipton v Foulkes [2001] EWCA Civ 324. Time extended; appeal allowed to the extent of reducing the sentence from 12 months to six months.
• High Court, Family Division: Mr Recorder Scott QC committed the appellant for contempt and imposed 12 months’ imprisonment on 29 November 2000.