Neil & Anor v Henderson (aka Neil)

Sentencing for contempt of court serves punitive and, where possible, coercive functions. Where the contempt is complete and cannot be purged, the coercive function has no relevance. Deliberately fabricating or deploying forged evidence for use in court proceedings will ordinarily pass the custody threshold because it seriously damages the administration of justice. The court must nevertheless consider whether custody is necessary, the shortest custodial term commensurate with the gravity of the contempt, suspension, and all relevant mitigation. Relevant factors include culpability, prejudice, pressure, cooperation, admission, apology, previous good character and personal circumstances. Each case turns on its own facts.

The applicants sought sanctions against the respondent after she had been found guilty of four contempts involving forged documents and a forged witness statement used in company-control proceedings. She later admitted knowingly and wrongly using the documents and apologised. The court therefore had to determine the appropriate sentence, including whether the custody threshold was met, whether imprisonment should be suspended, and the appropriate weight of mitigation. It also had to decide the appropriate costs order arising from the respondent’s conduct throughout the proceedings.

1. Custody threshold and sentencing framework. The court adopted the summary in Patel v Patel [2017] EWHC 3229 (Ch). Contempt sentencing may be coercive or punitive. The coercive function was irrelevant because the contempts were completed and incapable of cure. The court had to consider custody as a sanction of last resort and, if custody was imposed, the shortest term commensurate with gravity and deterrence, together with suspension.
2. Knowingly fabricating and deploying evidence for court proceedings is exceptionally serious. The respondent’s deliberate, concerted conduct, including the use of another person’s identity and the deception of her solicitor, passed the custody threshold. The mitigating factors did not justify avoiding custody.
3. The court considered prejudice, culpability, the absence of outside pressure, the very late admission, the genuine but belated apology, previous good character, depression, family and financial pressures, and the limited use of the forged material at the hearing. Those matters mitigated sentence but did not take the case below the custody threshold.
4. The forged September documents attracted four months. The forged statement attributed to Ms Borkova, involving identity theft and deception of the respondent’s solicitor, attracted eight months. The terms ran concurrently, producing an overall sentence of eight months, with unconditional release after four months under section 258 of the Criminal Justice Act 2003. The sentences were not suspended.
5. The respondent was ordered to pay the applicants’ costs on the indemnity basis, with £320,000 payable on account within 28 days.