Murray v Robinson

Sentences for contempt arising from breach of a non-molestation or occupation order under the Family Law Act 1996 must reflect the contemporary seriousness of domestic harassment. Actual violence is unnecessary: conduct causing fear and insecurity, especially at or near the victim’s home, may be grave. The court must respect the statutory maximum and avoid double punishment. Sentences should, so far as possible, not be manifestly discrepant from sentences for harassment under the Protection from Harassment Act 1997. The purposes of sentencing under the Criminal Justice Act 2003 are relevant, but imprisonment remains reserved for cases where it is necessary. An eight-month concurrent sentence for repeated threatening breaches was not excessive.

Following a non-molestation and occupation order made under the Family Law Act 1996, Robert Murray was found guilty of three breaches. His Honour Judge Sleeman, sitting at Guildford County Court on 18 April 2005, imposed eight months’ imprisonment for each breach, to run concurrently. The order followed an earlier breach of the same injunction and further threatening conduct towards Kate Louise Robinson.

Mr Murray appealed, contending that the sentences were excessive. The appeal concerned the proper approach to sentencing for contempt in family proceedings, the relevance of the absence of actual violence, and the relationship between proceedings under the 1996 Act and the Protection from Harassment Act 1997.

1. Appeal dismissed. The Lord Chief Justice gave the leading judgment, with Thorpe LJ and Lloyd LJ agreeing. The eight-month concurrent sentence was not excessive.
2. The choice of procedure is significant. Proceedings under the Family Law Act 1996 are subject to a maximum sentence of two years under the Contempt of Court Act 1981. Proceedings under the Protection from Harassment Act 1997 may attract a maximum sentence of five years in appropriate circumstances. Where conduct warrants a sentence near the top of the available range, proceedings under the 1997 Act will generally be preferable where that jurisdiction is available.
3. Sentencing for contempt under the 1996 Act must respect the statutory maximum. Sentences should, so far as possible, avoid manifest disparity with sentences for harassment under the 1997 Act. The court must also prevent concurrent criminal or civil proceedings from punishing the same conduct twice. The guidance in Lomas v Parle [2003] EWCA Civ 1804, Head v Orrow [2004] EWCA Civ 1691 and Liddle v Hayes [1999] 3 All ER 816 was material.
4. The absence of actual violence does not itself reduce the gravity of a breach. Threatening or harassing conduct may cause severe distress and insecurity, particularly when it occurs in or near the victim’s home. Contemporary sentencing must recognise the seriousness of domestic violence, harassment and molestation.
5. The purposes of sentencing identified in the Criminal Justice Act 2003 are relevant: punishment, reduction of crime, reform and rehabilitation, public protection and reparation. Seriousness, guilty pleas, repentance and remorse may also be considered. Imprisonment is not automatic in family contempt cases and should be reserved for cases where it is necessary. Alternatives, including a suspended sentence, may be appropriate, although the alternatives available under the 1996 Act are limited. The special emotional tensions and continuing contact often present in family cases remain relevant, as explained in Hale v Tanner [2000] 2 FLR 879.
6. On the facts, the repeated breaches, threatening conduct, previous history and impact on the victim justified the sentence. The judge had considered the relevant matters, including the admission of one breach. The order was therefore: appeal dismissed; detailed assessment of the appellant’s costs.

• Court of Appeal (Civil Division)—on 12 July 2005, in [2005] EWCA Civ 935, dismissed the appeal and upheld the concurrent eight-month sentences.
• Guildford County Court—His Honour Judge Sleeman, on 18 April 2005, found three breaches of the protective order and imposed eight months’ imprisonment for each breach, concurrently.