Thompson v Mitchell

A court sentencing for contempt to imprisonment must impose a fixed term, subject to the statutory early-release regime. It cannot require the contemnor to remain in prison until a specified date or prohibit release before that date, thereby overriding the Criminal Justice Act 1991. A sentence may be calculated to take account of early release, but it must remain commensurate with the contempt. The statutory regime applies to imprisonment for contempt. An order expressed by reference to a release date rather than a fixed term is therefore beyond jurisdiction and must be amended.

Steven Mitchell appealed against a sentence imposed in the Nottingham County Court following three proved breaches of a non-molestation order made for the protection of Emma Louise Thompson. The court imposed 72 days’ imprisonment and activated a suspended sentence of 56 days, to run consecutively, making 128 days in total. It directed that Mr Mitchell remain imprisoned until 16 September 2004 and later amended the order to refer only to that date. The central issue was whether the sentencing judge had jurisdiction to specify a release date which displaced the statutory early-release provisions.

Appeal allowed. Permission to appeal out of time was granted. The terms of imprisonment imposed for the breaches were not challenged; the issue concerned the form and legal effect of the order.

1. Lord Justice Wall held that a court sentencing a contemnor to imprisonment must impose a fixed term of weeks, months or years, subject to the statutory maximum of two years. The court has no power to direct that the contemnor remain in prison until a specified date or must not be released before that date.
2. The early-release provisions in the Criminal Justice Act 1991 could not be overridden by a committal order. The statutory scheme, including the provisions applied to imprisonment for contempt, remained effective. A judge wishing to take early release into account could calculate an appropriate fixed sentence, provided that the sentence remained commensurate with the contempt.
3. Lord Justice Keene agreed, confirming that a sentencing order could not enable the Home Secretary to opt out of sections 45 and 33(1) of the 1991 Act.
4. The order dated 2 June 2004 was amended by deleting the words referring to imprisonment until 16 September 2004, leaving a total fixed term of 128 days. The revised order dated 23 July 2004 was discharged. Detailed assessment of the appellant’s Community Legal Service Funding certificate was ordered.

• Nottingham County Court: Her Honour Judge Butler QC found three breaches of a non-molestation order, imposed 72 days’ imprisonment, activated a suspended 56-day sentence consecutively, and directed imprisonment until 16 September 2004. The order was later amended to refer only to that date.
• Court of Appeal (Civil Division): The appeal was allowed. The date-based wording was deleted and the order was restored to a fixed total term of 128 days.