Couzens v Couzens

In committal proceedings involving the liberty of the subject, failure to serve a suspended committal order in the prescribed Form N79 may constitute a fundamental defect. It is distinct from a curable technical error and may invalidate later activation of the suspended sentence.

Procedural defects must be assessed by balancing compliance with essential safeguards against prejudice and the interests of justice. Repeated breaches of protective injunctions may justify immediate custody, but the sentence must be based on the proved conduct, with proper regard to mitigation. Conduct should not be sentenced by reference to an inapt comparison with a more serious criminal offence.

Following an acrimonious marital breakdown, the county court made mutual protective injunctions and imposed a suspended committal sentence of 28 days on the husband. The order was drawn in the conventional family-proceedings form rather than Form N79.

On a later committal application, the judge found four breaches proved, activated the suspended sentence and imposed a further six-month sentence. The husband appealed, challenging service and validity of the suspended order, and the length of the additional sentence.

The central issues were whether the failure to use and serve Form N79 invalidated activation of the suspended sentence, and whether the additional sentence was excessive or based on an erroneous comparison with serious criminal offending.

1. Appeal partly allowed. The activation of the suspended 28-day sentence was set aside. The further six-month sentence was reduced to three months.
2. Orders for suspended imprisonment should be drawn on Form N79. Linkleter v Linkleter [1998] 1 FLR 360 established that requirement, and Nicholls v Nicholls [1997] 2 All ER 97 did not remove it.
3. The principles in Nicholls v Nicholls require the court to distinguish fundamental failures from mere technicalities. Although defects will not ordinarily invalidate a committal order where there has been a fair trial, valid grounds and no prejudice, the failure here was fundamental. The husband had not been served with the detailed form needed to identify the proved breaches and the conditions governing the suspended sentence. The defect could not be cured by amendment, so activation of the suspended sentence had to fall.
4. The repeated breaches of orders protecting the wife made immediate custody necessary. However, the judge erred by drawing an analogy with an offence under section 18 of the Offences against the Person Act 1861. The proved conduct did not justify that level of comparison. The sentence also required proper allowance for the husband's good character, employment, family responsibilities and the absence of further incidents. A three-month sentence was substituted for six months.
5. Lord Justice Robert Walker and Mr Justice Carnwath agreed with the judgment of Lord Justice Thorpe.

• Court of Appeal (Civil Division): appeal from the Southampton County Court. The court set aside activation of the suspended sentence and reduced the additional sentence from six months to three months.