AAA & Anor v CCC

The Court of Appeal allowed the appellants' challenge to a committal order imposed by HHJ Cawson QC on the ground that the sentence was unduly lenient and some factors were wrongly assessed. The court applied the established approach to sentencing for contempt, emphasizing culpability and harm, the guidance in Liverpool Victoria Insurance Co Ltd v Khan, McKendrick v FCA and the Supreme Court’s summary in Her Majesty's Attorney General v Crosland, alongside relevant procedural rules (CPR Part 81) and section 14 of the Contempt of Court Act 1981.

The court concluded that the judge had understated the seriousness of 28 deliberate breaches of a final injunction which undermined the order’s central purposes (including anonymity of the claimants) and had given disproportionate weight to a belated apology and other mitigating features while taking irrelevant matters into account when deciding to suspend the sentence in full. For those reasons the Court of Appeal set aside the committal order as unduly lenient and remitted the matter for resentencing.

Background and parties. This is an appeal against a committal order made by HHJ Cawson QC (sealed 23 July 2021) committing the respondent to prison for six months, suspended for three years, for breach of a substantive injunction (the "Substantive Order"). The substantive injunction, made following final hearings, restrained disclosure of specified information, identification of the claimants, adverse comment about the first claimant and other activities harmful to the claimants' business.

Nature of application and procedural history. The committal followed a finding at a committal hearing that the respondent committed 28 breaches of the Substantive Order shortly after the Court of Appeal dismissed his appeal and the Substantive Order as varied was in force. The committal application and substantive hearings were held in private under anonymity orders. The appeal to this court challenges the sentence as unduly lenient and alleges errors in the judge’s assessment of culpability, harm, mitigation and the appropriateness of suspension.

Issues framed.

• Whether the sentencing judge adopted the correct legal approach and applied relevant authorities and rules (including CPR Part 81, s14 Contempt of Court Act 1981, CPR r52.21 and the guidance in Liverpool Victoria, McKendrick and Crosland).
• Whether the judge erred in weighing aggravating and mitigating factors, including the significance of the respondent’s belated apology, his health and good character, lack of profit motive and alleged frustration, and whether those factors justified a wholly suspended sentence.
• Whether the imposed sentence (six months suspended) was unduly lenient and outside the range of reasonable sentences.

Court’s reasoning and subsidiary findings. The Court of Appeal stressed that sentencing for contempt requires assessment of culpability and harm, and that appellate interference is limited to errors of principle, failure to take material factors into account, taking into account immaterial factors, or decisions outside the reasonable range. The court found the breaches were deliberate and at the most serious end of the spectrum because they undermined the core purposes of the injunction, including anonymity, and risked damaging commercial relationships.

The court held that the sentencing judge gave disproportionate weight to the respondent’s very belated apology and remorse (tendered at the end of the hearing and not equivalent to an early admission), and relied on irrelevant or already-accounted-for factors (frustration, lack of bravado, absence of profit motive) when deciding both length and suspension. The judge also failed to consider suspending part rather than all of the custodial term. For those reasons the Court of Appeal concluded the sentence was unduly lenient, set aside the order and remitted sentence for reconsideration by the Business and Property Courts in Manchester.

Appeal allowed. The Court of Appeal held that the committal sentence of six months suspended was unduly lenient and outside the range of reasonable sentences because the sentencing judge underestimated the seriousness of 28 deliberate breaches that undermined the substantive injunction and gave disproportionate weight to belated mitigation and irrelevant factors when deciding both sentence length and full suspension; the matter was remitted for resentencing.

Appeal from a committal order made by His Honour Judge Cawson QC (Business and Property Courts in Manchester) sealed 23 July 2021; underlying substantive order made by His Honour Judge Eyre QC on 14 November 2019 and varied by the Court of Appeal on 7 July 2020. The committal judgment at first instance is reported as [2021] EWHC 2534 (Ch).