Lomas v Parle

An appellate court may increase a sentence for contempt only where it is unduly lenient, not merely lenient. The power must be used sparingly. Any increase must also reflect the double-jeopardy element arising from the appellant having already been sentenced.

Where conduct gives rise to concurrent family and criminal proceedings, courts must avoid punishing the same act twice. The first sentencing court should sentence without anticipating a later sentence. The second court should take the earlier sentence into account, on a fully recorded basis. Parallel civil remedies under the Family Law Act 1996 and the Protection from Harassment Act 1997 may be pursued and should, where possible, be consolidated.

The wife appealed against concurrent sentences of four months’ imprisonment imposed by His Honour Judge Harris QC in the Liverpool County Court for the husband’s admitted breaches of non-molestation injunctions made under section 42 of the Family Law Act 1996.

The breaches comprised a threatening postal communication and threatening text messages. The husband had a history of harassment, earlier contempt sentences, criminal proceedings for assault and harassment, and pending charges for breach of a restraining order under the Protection from Harassment Act 1997.

The appeal raised whether the four-month terms were unduly lenient and how a family-court contempt sentence should interact with parallel criminal proceedings for related conduct.

1. Appeal allowed. The concurrent four-month sentences were unduly lenient. Judge Harris’s mitigation was inconsistent with his own finding that the husband had not ended his campaign of harassment or shown genuine remorse. The admitted breaches were each grave and sinister in their presentation and implication.

2. The court held that an appellate increase in a contempt sentence is exceptional. It may be made only where the sentence is not merely lenient but unduly lenient, and the appellate court must give credit for the double-jeopardy element. Applying that standard, a sentence below ten months would have been unduly lenient, but the appropriate sentence was eight months’ imprisonment concurrent on each breach.

3. The court supplemented the guidance in Hale v Tanner [2000] 1 WLR 2377. Concurrent family and criminal proceedings may concern the same or overlapping conduct, although they serve different purposes. The first court to sentence must not anticipate a likely later sentence. The second must reflect the prior sentence so that the offender is not punished twice for the same act. The first court must clearly state the basis of sentence and make its judgment available to the second court.

4. There is no bar to concurrent applications under section 42 of the Family Law Act 1996 and section 3 of the Protection from Harassment Act 1997. Where both are pursued, they should be issued in the same court, consolidated, and heard by a judge with both family and civil jurisdiction. Sections 3(7) and 3(8) of the latter Act separately prevent both contempt punishment and criminal conviction for the same breach of an injunction granted in section 3 proceedings.

5. Within the two-year ceiling imposed by section 14 of the Contempt of Court Act 1981, family-court sentences for breaches of section 42 injunctions should, so far as possible, not be manifestly discrepant from sentences for comparable harassment offences. The scope for alignment diminishes where the associated criminal offences are more serious.

• Court of Appeal (Civil Division) Allowed the wife’s appeal and substituted concurrent sentences of eight months’ imprisonment: [2003] EWCA Civ 1804.
• Liverpool County Court On 16 September 2003, His Honour Judge Harris QC imposed concurrent sentences of four months’ imprisonment for two admitted breaches of non-molestation injunctions.