K v P

When sentencing for contempt arising from breach of a non-molestation order, a court must take account of time spent on remand under section 48 of the Family Law Act 1996.

The statutory credit regime excludes imprisonment imposed as punishment for contempt, so remand is not automatically deducted. The judge must therefore account for it twice: remand must be recognised when fixing the sentence, and it must also be treated as time served towards release. Where release follows service of half the stated term, the sentence should be adjusted so that remand plus the custodial part of the adjusted term reflects the intended punishment.

K appealed against a sentence imposed by His Honour Judge Copley in the Principal Registry of the Family Division for breaches of a non-molestation order. The sentence comprised activation of a three-month suspended sentence and a further twelve months for making a false 999 call.

K had spent approximately three months on remand under section 48 of the Family Law Act 1996 while reports were being obtained. The sentencing judge did not take that period into account and stated that the Prison Authority would calculate release. The appeal concerned whether that approach was legally erroneous. The length of the underlying sentence was not challenged.

Appeal allowed. Mr Justice Charles gave the lead judgment, with Lord Justice Thorpe and Lord Justice Moore-Bick agreeing.

1. The periods of imprisonment imposed for the breaches were not themselves challenged. The issue was the failure to account for the three months spent on remand under section 48 of the Family Law Act 1996.
2. The conclusion in Sevketoglu v Sevketoglu [2003] EWCA 1570, drawing on Delaney v Delaney [1996] 1 FLR 458, remained applicable. The ordinary statutory regime under sections 240–242 of the Criminal Justice Act 2003, read with sections 242(1) and 305, does not automatically credit remand against imprisonment imposed as punishment for contempt.
3. Remand must nevertheless be taken into account twice. The judge must recognise that it will not be deducted automatically, while also recognising that, under the ordinary rule, it counts towards the time to be served before release. Section 258 of the Criminal Justice Act 2003 requires release after one half of the stated sentence.
4. The correct adjustment was to deduct six months, twice the three-month remand period, from the twelve-month sentence for the 999 call. That produced six months for that breach, plus the activated three-month sentence, making nine months. K would serve four and a half months of that sentence, in addition to the three months on remand, totalling seven and a half months, equivalent to half of the fifteen months originally imposed.

The sentence periods were otherwise appropriate, and there was no challenge based on any misapplication of the guidance in Hale v Tanner [2000] 2 FLR 879. The order was: appeal allowed.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 600, allowed the appeal and held that the sentencing judge had to account for the period spent on remand.
• Principal Registry of the Family Division: On 25 January 2008, His Honour Judge Copley imposed twelve months for the later breach and activated a three-month suspended sentence, making fifteen months in total, without taking the remand period into account.