Cooke v Smart

On an appeal against a sentence for contempt, the question is whether the sentence is clearly excessive, rather than merely severe. The appellate court should give substantial weight to the sentencing judge’s discretionary assessment where that judge heard the evidence over several days and was well placed to evaluate the seriousness of the breaches. Multiple breaches of protective orders, particularly breaches committed immediately after service and involving defiance of the court’s authority, may justify a severe custodial sentence. Severity alone does not establish disproportionality or excessiveness. An available opportunity to purge contempt is material when assessing the sentence; the judge who imposed it should ordinarily hear the application and consider any continuing protective orders.

The appellant challenged a nine-month total sentence imposed by Northampton County Court following a three-day committal hearing. Ten alleged breaches of protective orders were considered, of which five were found proved. The orders prohibited violence, threats, intimidation, harassment, pestering and attendance at the respondent’s home. The breaches occurred over five days, beginning shortly after service of the orders. The appellant argued that the absence of actual violence, the limited period involved and his circumstances made the sentence excessive, and sought a shorter or suspended sentence. The central issue before the Court of Appeal was whether the sentence was clearly excessive or merely severe.

The appeal was dismissed unanimously. Lord Justice Thorpe gave the leading judgment, and Mr Justice Wall agreed.

1. Appellate standard. The issue was whether the sentence was clearly excessive, rather than merely severe. An appellate court should be slow to interfere with a discretionary sentence for contempt unless manifest error is demonstrated beyond peradventure.
2. Weight to the first-instance assessment. The Recorder had heard the dispute about the breaches over three days. He therefore had a substantially better opportunity to observe and assess the appellant, evaluate the gravity of the conduct and determine the appropriate penalty.
3. Application. The number, nature and timing of the breaches were significant. They began immediately after the protective orders were made and represented a sustained challenge to the authority of the court. Although the sentence was severe and there had been no actual violence, it was not disproportionate or excessive.
4. Purge of contempt. The Recorder had left open the possibility of an application to purge the contempt. That opportunity was material to the sentencing decision. The Recorder should hear the application and determine what further protective orders were required.

Order: appeal dismissed; costs to be assessed insofar as necessary.

• Court of Appeal (Civil Division): On 28 June 2002, the court dismissed the appeal against sentence. [2002] EWCA Civ 1050
• Northampton County Court: Mr Recorder Corbett QC imposed an aggregate nine-month sentence on 24 May 2002 for five proved breaches of protective orders, with some sentences consecutive and some concurrent.