Korta-Haupt & Anor v Chief Constable of Essex Police

On an appeal against a contempt sentence, the Court of Appeal generally interferes only for an error of principle, reliance on immaterial factors, failure to consider material factors, or a sentence plainly outside the reasonable range. Contempt sentencing has no automatic one-third credit for admissions, no automatic reduction for the conditions of detention during Covid-19, and no compulsory deduction for time on remand. A court may suspend execution of a committal order under the Civil Procedure Rules 81.29(1), but cannot combine an immediate and suspended sentence. Separate breaches may be sentenced concurrently or consecutively, subject to totality. Persistent deliberate breaches and previous failed opportunities to comply justified immediate custody.

These were two appeals from sentences imposed by the Chelmsford County and Family Court for breaches of gang-related injunctions. Sahin Korta-Haupt, aged 19, received 140 days’ detention for seven breaches, including breach of an undertaking to wear a GPS tracker. Roland Douherty, aged 20, received 84 days’ detention for six breaches, following activation of an earlier suspended sentence and credit for time on remand.

The appeals challenged the admission discounts, the use of concurrent or consecutive sentences, the weight given to personal mitigation and the Covid-19 restrictions, the availability of partly suspended sentences, and credit for remand. The central issue was whether either sentencing decision was wrong in principle or plainly outside the range reasonably open to the judge.

1. Disposition. The Court of Appeal dismissed both appeals. There was no alternative to immediate custody and no proper basis for suspending either sentence.
2. Appellate restraint. The court generally interferes with a contempt sentence only where the judge made an error of principle, took account of an immaterial factor, failed to take account of a material factor, or reached a plainly wrong decision outside the range reasonably open to the judge. The two sentencing judges had proceeded carefully and in accordance with principle, applying the relevant aims of punishment, proportionality, future compliance and rehabilitation. This approach was consistent with Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392 at [44].
3. Suspended sentences. The power under the Civil Procedure Rules 81.29(1) to suspend execution of a committal order does not permit an immediate sentence to be combined with a further suspended sentence, whether at sentencing or when reviewing a sentence following an application to purge contempt. Harris v Harris [2001] EWCA Civ 1645; [2002] Fam 253 supported that conclusion. In any event, repeated breaches, previous custody and failed promises of future compliance provided no basis for such a sentence.
4. Sentence structure and mitigation. The judge could treat breaches committed at different places and on different days as separate breaches or as one continuous breach. Concurrent or consecutive terms were permissible, provided that the total sentence was proper for the contempts and the contemnors. There is no fixed one-third reduction for admissions in contempt proceedings. The reduction is discretionary, and a reduction marginally below one-third was not wrong in principle, particularly where the admissions were incomplete. Personal mitigation was considered but carried little weight in light of deliberate and persistent disobedience.
5. Covid-19 and remand. The pandemic may make custody more burdensome because of detention conditions, restricted visits and anxiety, as explained in R v Manning [2020] EWCA Crim 592, but there is no automatic Covid-19 discount. Finally, time spent on remand need not be deducted from a contempt sentence. The judge could have made a reduction, but was not obliged to do so: R (James) v Governor of Birmingham Prison [2015] EWCA Civ 58.

• Court of Appeal (Civil Division) — In Korta-Haupt & Anor v Chief Constable of Essex Police [2020] EWCA Civ 892, the appeals were dismissed on 13 July 2020.
• Chelmsford County and Family Court — On 4 June 2020, Her Honour Judge Murfitt sentenced Korta-Haupt to 140 days’ detention for seven breaches. On 9 June 2020, His Honour Judge Lewis sentenced Douherty to 84 days’ detention, including the activated suspended sentence and credit for time on remand.