R v James Michael Tierney

Sentences for contempt arising from breaches of court orders are highly fact specific. The starting point for a serious breach of a restraint and disclosure order is immediate imprisonment, measured in months rather than weeks, but the sentence must remain proportionate to the individual contempt. On an appeal against sentence, the reviewing court asks whether the sentence was manifestly excessive or wrong in principle. Consecutive terms may be imposed for separate breaches where the total sentence remains just and proportionate. The sentencing judge’s findings about the contemnor’s motivation, intention and credibility attract particular weight because that judge heard the evidence. The fact that the underlying proceedings are a private prosecution does not require a different sentencing approach. Suspension of a sentence below two years is a matter for the sentencing judge’s discretion.

The appellant was sentenced by His Honour Judge Rochford in the Crown Court at Birmingham on 27 May 2022 to seven months’ imprisonment for four breaches of a restraint and disclosure order made under section 41 of the Proceeds of Crime Act 2002. Three breaches concerned undisclosed withdrawals from a Monzo account. The fourth concerned failure to disclose the true particulars of three transfers.

The appellant appealed against sentence, arguing that the individual terms were excessive, that consecutive sentences breached the totality principle, that the sentence should have been no longer than four months, and that it should have been suspended. He also suggested that the private-prosecution context required a different approach. The central issues were whether the sentence was manifestly excessive or wrong in principle and whether immediate custody and consecutive terms were justified.

The appeal against sentence was dismissed.

1. The purpose of sentencing for contempt is to uphold the authority of the court, encourage compliance with court orders, punish contempt and provide an incentive to remedy it. Orders are made to be complied with, and deliberate breaches of a restraint and disclosure order may properly attract custody.

2. There is no guideline or fixed tariff for contempt sentences. The cases are highly fact specific. The general principle identified in JSC Bank v Solodchenko [2011] EWCA Civ 1241 is that the starting point for breach of such orders is immediate imprisonment, measured in months rather than weeks.

3. The function of the appellate court is review, not rehearing. It must decide whether the resulting sentence was manifestly excessive or wrong in principle. The sentencing judge is especially well placed to assess the facts, motivation, intention and gravity of the contempt after seeing and hearing the contemnor give evidence.

4. The first three breaches were flagrant and deliberate. The fourth breach was less serious because it did not involve setting in train a continuing sequence of events, but it was properly treated as a separate breach. Concurrent terms for the first three breaches and a consecutive three-month term for the fourth did not breach totality.

5. The private-prosecution context did not alter the applicable sentencing principles. The decision whether to suspend a sentence of less than two years was within the sentencing judge’s discretion. There was no error of principle in imposing immediate custody, and the total sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): The appeal against the seven-month sentence imposed by the Crown Court at Birmingham was dismissed. The court held that the sentence was neither manifestly excessive nor wrong in principle.
• Crown Court at Birmingham: On 27 May 2022, His Honour Judge Rochford imposed concurrent four-month terms for three breaches and a consecutive three-month term for a fourth breach, making seven months’ imprisonment in total.