Carabott v Huxley

An appellate court should interfere with a sentence for contempt only where it is manifestly excessive. The sentencing court may consider the contemnor’s history, the cumulative effect of repeated breaches, threats, harassment, breaches of bail or criminal law, and the impact on the protected person, although sentence is imposed only for contempts identified in the notice. Sentencing authorities assist on principle, but factual analogies are unreliable. Under section 42 of the Family Law Act, sentences should, so far as possible, avoid manifest discrepancies with harassment sentences under the Protection from Harassment Act 1997. Rehabilitation cannot justify an excessive sentence, although it may be pursued during a justified custodial term.

Shaun Huxley appealed against an 18-month concurrent sentence imposed by Mr Recorder Morris in the Bow County Court on 19 January 2005. He had admitted six categories of contempt arising from repeated breaches of a protective injunction made under the Family Law Act.

He accepted that imprisonment was appropriate but argued that the sentence was manifestly excessive, relying on his admissions, apology, mitigation and time already spent in custody. The central issue was whether the sentence fell outside the proper range, having regard to the persistent harassment, threats and previous breaches.

Appeal dismissed. Lord Justice Lloyd gave the leading judgment and Lord Justice Wall agreed.

1. Seriousness of the contempts. Although the sentence related only to the six categories specified in the notice to show cause, the Recorder was entitled to consider the wider history and cumulative effect of Huxley’s conduct. That included previous breaches of criminal law, bail conditions and injunctions, the earlier committal, persistent telephone calls, threats, abusive conduct, harassment and pestering. The absence of further physical violence did not make the conduct minor, particularly in light of its effect on the protected person.
2. Use of sentencing authorities. Hale v Tanner [2000] 1 WLR 2377, Robinson v Murray [2005] EWCA Civ 935, Lomas v Parle [2003] EWCA Civ 1804 and Head v Orrow [2004] EWCA Civ 1690 assisted in identifying relevant principles. Direct factual comparisons between contempt cases were unreliable because of the many variables. The court rejected an approach that began with the two-year maximum and mechanically discounted it for mitigation.
3. Statutory context. Lord Justice Wall noted that section 42 of the Family Law Act imposed a two-year maximum for contempt, whereas harassment under the Protection from Harassment Act 1997 carried a five-year maximum. So far as possible, sentences under section 42 should not be manifestly discrepant from sentences for harassment. The guidance in R v Liddle and R v Hayes [1997] 3 All ER 816 also demonstrated the importance of repetition, breach of court orders and the nature of the misconduct. In that context, 18 months was not disproportionate.
4. Mitigation and rehabilitation. The Recorder could have referred expressly to the admissions, apology and week already spent in custody. Nevertheless, the Court of Appeal was satisfied that, even if those matters had been stated expressly, the sentence would remain within the proper range and would not be manifestly excessive. Rehabilitation programmes could not justify an otherwise unjustified or excessive custodial sentence, but could properly be undertaken during a justified term.

The appeal was dismissed. The parties’ Community Legal Services Funding certificates were subject to detailed assessment.

1. Court of Appeal (Civil Division) — On 19 August 2005, dismissed the appeal against the 18-month sentence: [2005] EWCA Civ 1837.
2. Bow County Court — Mr Recorder Morris imposed an 18-month concurrent sentence on 19 January 2005 for admitted contempts of the protective injunction.