Chelsea Football Club Ltd v Nichols & Anor

An application to discharge a contemnor from imprisonment before expiry is determined by evaluating all the circumstances as they have subsequently developed. The relevant considerations form a cumulative assessment rather than a checklist, and favourable answers to every question are unnecessary. New factors may alter what is necessary and proportionate after sentence. The public interest in upholding the rule of law must be balanced against other important public interests. Where a sentence is wholly punitive, a contemnor should not be treated more harshly than a convicted prisoner of similar risk and duration who would qualify for an exceptional early-release scheme. The effect of a public-health emergency, increased health risks, unusually onerous prison conditions and the absence of any protective benefit from continued detention may together justify immediate discharge.

Mr Nichols had been committed to prison for 21 weeks for breaching an injunction prohibiting dealings in Chelsea Football Club tickets. The Court of Appeal dismissed his sentence appeal in [2020] EWCA Civ 470, while making clear that any application based on developments after sentence was for the High Court.

Mr Nichols then applied under CPR rule 81.31 for discharge. He relied on the Covid-19 pandemic, his diabetes and cardiac condition, prison lockdown and cancelled visits, the effect on his family, and the Ministry of Justice’s proposed early release of certain low-risk convicted prisoners. The central issue was whether those new circumstances made continued imprisonment disproportionate or otherwise justified discharge.

1. Application granted. Mr Nichols was discharged from his sentence of imprisonment with immediate effect under CPR rule 81.31.
2. The governing approach was derived from Swindon Borough Council v Webb (trading as Protective Coatings) [2016] EWCA Civ 152; [2016] 1 WLR 3301, with particular assistance drawn from the eight questions identified in CJ v Flintshire Borough Council [2010] 2 FLR 1224. The questions concern proportionality, the rule of law, contrition, steps to prevent recurrence, protective arrangements, time served and special factors. They are not a checklist. The answers must be assessed together, and success does not depend on favourable answers to all of them.
3. The court also applied the principle that discharge concerns new factors arising after a sentence previously found necessary and proportionate. Without Covid-19, the sentence remained proportionate. The cancellation of family visits and prison lockdown nevertheless made detention materially more onerous than anticipated and were relevant factors.
4. The Ministry of Justice’s proposed release scheme for low-risk convicted prisoners who had served at least half their custodial term and had less than two months remaining was a relevant expression of the balance between the rule of law and the protection of the NHS. Mr Nichols’ sentence was wholly punitive, arising from breach of a prohibitory injunction. It was therefore unfair to treat him more harshly than a convicted prisoner serving a similar term, although the approach would not justify releasing all contemnors meeting the same temporal criteria, particularly where a sentence had a coercive element.
5. The decisive factors were Mr Nichols’ diabetes and cardiac condition, the increased risk of serious Covid-19 complications, the public interest in reducing pressure on the NHS and prisons, and his having served approximately half of the custodial term in unusually onerous conditions. Continued imprisonment would provide no additional protective benefit because sporting fixtures had ceased. Undertakings and electronic monitoring were unnecessary and inappropriate in the circumstances.

• Court of Appeal: The sentence appeal was dismissed in [2020] EWCA Civ 470. The court stated that post-sentence developments were matters for the High Court.
• High Court (Queen’s Bench Division): The application for discharge was granted and Mr Nichols was released immediately.