Slade v Slade

When conduct constituting contempt has already been punished in criminal proceedings, the civil court must not punish that conduct again. It may sentence for additional conduct and for the distinct fact that the court’s order or an undertaking was breached. In assessing the seriousness of that breach, the court may consider its context and general gravity, but must avoid sentencing again for the content of the criminal conduct.

Contempt sentences must be proportionate, informed by related criminal proceedings and not manifestly discrepant from comparable criminal sentences. The court should consider totality, the contemnor’s mental health and whether imprisonment can be suspended. Pending criminal proceedings do not, without compelling reason, justify delaying committal proceedings.

The former wife appealed against an order of His Honour Judge Mitchell in Nottingham County Court committing her to prison for 21 months. Six concurrent sentences had been imposed for breaches of an undertaking not to harass or pester her former husband or communicate with him except through solicitors.

The contempts included an arson-related incident, repeated abusive text messages, misuse of bank details, direct letters, false reports to a benefits authority and abuse outside the husband’s home. Part of the first incident had already resulted in a criminal conviction, probation and a compensation order. The findings of contempt were not challenged.

The central issues were whether the individual and overall sentences were manifestly excessive, and how a civil court should sentence for contempt where the same conduct has already been punished in criminal proceedings.

Appeal allowed. The Court of Appeal unanimously reduced the concurrent sentences to an overall term of six months’ immediate imprisonment.

1. Wilson LJ held that conduct already punished by a criminal court must not be punished again as contempt. The civil court may sentence for additional conduct outside the criminal proceedings and for the distinct fact that the conduct also breached an undertaking. It may assess the context and general gravity of the breach, but must rigorously avoid sentencing again for the content of conduct already punished. The wording in Lomas v Parle, [2003] EWCA Civ 1804, that the second court should reflect the prior sentence could mislead: the second court should instead decline to sentence for conduct already punished.

2. The 18-month sentence for the first contempt was manifestly excessive. Six months was proportionate after excluding the destruction of the motorcycle as conduct already punished, while taking account of other grave conduct and the serious breach of an undertaking given shortly beforehand.

3. The remaining sentences were also manifestly excessive. Proportionate terms were four months for the text messages, one month each for the misuse of bank details and the letters, and two months each for the false benefits allegations and the shouted abuse. All terms remained concurrent.

4. Wall LJ identified three proportionality principles for contempt proceedings overlapping with criminal proceedings: the court must not sentence for the criminal equivalent of the conduct; it should obtain as much information as possible about the parties and related criminal proceedings; and the contempt sentence should not be manifestly discrepant from criminal sentences for comparable offences. The purposes of contempt sentencing include marking disapproval of disobedience and securing future compliance.

5. The contemnor’s mental health was relevant to sentence. Delay and the absence of earlier warnings were also material. The mere existence of criminal proceedings did not justify delaying committal proceedings without a compelling reason.

6. A sentencing court should consider the proper maximum term for the whole course of conduct and should expressly ask whether imprisonment can be suspended. Immediate imprisonment was nevertheless justified for these serious contempts. Ward LJ agreed with both judgments.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 748, unanimously allowed the former wife’s appeal against sentence and reduced the overall concurrent term from 21 months to six months’ immediate imprisonment.
2. Nottingham County Court: His Honour Judge Mitchell found six breaches of an undertaking proved and imposed concurrent terms producing an overall sentence of 21 months’ imprisonment.