Mark Cooper v Ignite International Brands (UK) Limited & Ors

In an appeal against an immediate custodial sentence for contempt, suspension is a matter of judgment requiring an overall assessment of the seriousness of the contempt, mitigation and the consequences of custody. The Sentencing Council guideline on suspension is relevant guidance, but it does not automatically apply and its factors are not counted arithmetically. Deliberate and highly culpable breaches causing substantial and irremediable prejudice, coupled with repeated non-compliance with court orders and no realistic prospect of rehabilitation, may justify immediate custody despite strong personal mitigation and harmful effects on family members. An appellate court will not interfere unless the judge erred in principle, ignored a material factor or reached a plainly wrong or manifestly excessive decision.

Mr Mark Cooper appealed as of right from Sweeting J’s sanctions decision, [2024] EWHC 1595 (KB), imposing concurrent nine-month immediate custodial terms for two contempts. One contempt concerned failure to deliver up or properly account for missing stock. The other concerned failure to provide an assets affidavit under a freezing order. The appeal was limited to whether the sentence should have been suspended, relying on personal mitigation, family responsibilities and Isbilen v Turk, [2024] EWCA Civ 568. The central issue was whether the decision to require immediate custody was erroneous in principle or outside the range of reasonable decisions.

The appeal was dismissed. The concurrent nine-month immediate custodial sentences were upheld.

1. Appellate approach. The Court of Appeal applied the restrained approach in Financial Conduct Authority v McKendrick, [2019] EWCA Civ 524, and R v Price, [2023] EWCA Crim 1060. The court should not substitute its own sentencing judgment. Intervention requires an error of principle, failure to consider a material factor, reliance on an immaterial factor, or a decision outside the reasonable range. In suspension cases, the decision must be manifestly excessive or wrong in principle.
2. Suspension of custody. The Sentencing Council guideline provides useful guidance but does not automatically apply to contempt proceedings. Its factors are not to be counted mechanically. Strong personal mitigation and harmful impact on others may favour suspension, but they must be weighed against the seriousness of the contempt, the need for punishment and deterrence, compliance history and any realistic prospect of rehabilitation.
3. Application. The judge had expressly considered Mr Cooper’s mental health, substance misuse, children and childcare responsibilities. The contempts involved substantial prejudice, the loss of perishable stock, deliberate and highly culpable conduct, abuse of a position of trust, continuing non-compliance and little remorse. The first contempt could never be purged, and there was no realistic prospect of rehabilitation. The judge was entitled to conclude that only immediate custody was sufficient, reflecting mitigation in the length of the sentence.
4. Authorities on suspension. Isbilen v Turk and Templeton Insurance v Thomas, [2023] EWCA Civ 35, were fact-specific. Their circumstances, including absence of material detriment or the need to preserve a defendant’s ability to conduct ongoing proceedings or comply with disclosure obligations, did not exist here.
5. Costs. Mr Cooper was ordered to pay the respondents’ appeal costs of £4,000 inclusive of VAT.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 807, the appeal against the decision not to suspend the sentences was dismissed. Costs were ordered in the sum of £4,000 inclusive of VAT.
• High Court of Justice, King’s Bench Division: Sweeting J imposed two concurrent nine-month immediate custodial terms for contempt in [2024] EWHC 1595 (KB).