Nichols v Chelsea Football Club Ltd

Sentencing for contempt is a case-specific exercise focused on culpability, harm, aggravating and mitigating factors. On appeal, the Court of Appeal asks whether the sentence was proper for the particular contempt and contemnor, viewed in the round. It does not fine-tune starting points or discounts unless the overall sentence is manifestly excessive. A willing sale to a club’s test-purchasing agent is not, without more, entrapment or mitigation. A previous suspended sentence for similar contempt is a material aggravating factor, although it cannot be activated where that power is unavailable. An admission warrants credit according to its timing, but no fixed discount is required if appropriate credit has been given and the sentence is otherwise proper.

The appellant breached a High Court order prohibiting dealings in Chelsea Football Club tickets by selling a ticket to a club agent on a match day. He admitted contempt. The High Court imposed five months’ imprisonment, expressed in the order as 21 weeks. A previous six-month sentence for similar contempt remained suspended.

He appealed, arguing that the agent’s role made the conduct akin to entrapment, that a Newton hearing should have been held, and that too little credit was given for his admission. He abandoned a proposed reliance on the ticket-touting sentencing regime under the Criminal Justice and Public Order Act 1994, s.166. The central issues concerned culpability, aggravation, mitigation and appellate review.

1. Appeal dismissed. Peter Jackson LJ gave the lead reasons, with McCombe LJ agreeing. The sentence was within the appropriate range and was not manifestly excessive.
2. On an appeal against sentence for contempt, the Court of Appeal reviews the matter in the round and asks whether the sentence was proper for this contempt by this contemnor. It is reluctant to interfere with sentencing decisions of this kind, following McKendrick v Financial Conduct Authority [2019] EWCA Civ 524. It should not fine-tune the sentence by recalculating the starting point or individual discounts unless the overall sentence is manifestly excessive.
3. The appellant’s sale to a club agent was not entrapment or a mitigating circumstance. The sale was willingly made on a match day, and the use of agents was a necessary means of combating ticket touting. The appellant had not recorded any qualified basis of plea, and the court was not required to hold a Newton hearing. Even on his own account, the sentence was appropriate. McCombe LJ added that test purchases in criminal cases do not readily mitigate the offending.
4. The earlier suspended custodial sentence for similar contempt was a material aggravating factor. Although activation of that sentence was unavailable, the analogy with activation and an additional sentence could properly be taken into account. A repeated breach did not call for a lower starting point; the starting point could have been higher.
5. The admission was taken into account. The guidance in Liverpool Victoria Insurance Co. Ltd. v Zafar [2019] EWCA Civ 392 concerned credit according to the timing of an admission, but it did not require a fixed fraction in this case. The judge made a distinct reduction and considered the family circumstances. The Court of Appeal would not engage in further fine-tuning. The sentence was entirely proper.

• Court of Appeal (Civil Division) ([2020] EWCA Civ 470): dismissed the appeal against the contempt sentence.
• High Court (Queen’s Bench Division): found the appellant in contempt and imposed five months’ imprisonment, expressed as 21 weeks, for breaching an order prohibiting ticket dealing.