Shahraab Ahmad v Karim Ouajjou & Anor

Sentencing for admitted contempt of a freezing order requires an assessment of culpability and harm, followed by consideration of whether a fine is sufficient and, if custody is necessary, the shortest proportionate term. Deliberate or reckless disposal of a substantial asset specifically identified in the order is ordinarily sufficiently serious to cross the custody threshold.

Early admissions, genuine remorse, personal circumstances and the effect on children may reduce sentence, but do not automatically justify suspension. Prison conditions or an unpassed Bill do not create a general duty to suspend short custodial sentences. Parties must comply with court orders and seek variation where necessary; they cannot decide for themselves that compliance is unnecessary. The court declined to debar a contemnor from pursuing a counterclaim where that sanction would be disproportionate and unjust.

The claimant applied to sentence Karim Ouajjou and Yasmin Al Sahoud Perez for admitted breaches of worldwide freezing orders made on 18 March 2022 and continued by consent on 30 March 2022.

The breaches included transferring Ouajjou’s interest in a Madrid property to Perez, Perez’s subsequent sale of the property, and Perez’s expenditure above the weekly living-expenses allowance. The defendants did not attend the sentencing hearing, although witness statements were filed in mitigation.

The court had to determine the appropriate sentence for each breach, whether any custodial terms should be suspended, how totality applied to Perez’s sentences, and whether Ouajjou should be debarred from pursuing his counterclaim.

1. Evidence and mitigation. The weight given to the defendants’ witness statements had to be assessed against contemporaneous documents, inherent plausibility and the known facts, applying the criminal standard. Their deliberate absence from a hearing that might result in imprisonment substantially weakened the weight given to their evidence and apologies, particularly where no good reason for non-attendance was established.
2. Sentencing approach. The court applied the approach derived from Attorney General v Crosland and the other cited authorities: assess culpability and harm; consider whether a fine suffices; impose the shortest custodial term that reflects the seriousness of the contempt; give due weight to mitigation, the effect on children or vulnerable persons and early admissions; and then consider suspension.
3. D1. Transferring a half-interest in a substantial asset expressly identified in the freezing order was a serious breach. It was not inadvertent. At minimum it was reckless, given the defendants’ English legal representation and the need to seek advice before disposing of real property. The fact that the transfer was part of tax planning and caused no immediately demonstrated loss did not materially mitigate the contempt, because it formed part of the surrounding strategy culminating in sale. An immediate custodial sentence of nine months was imposed.
4. D2. The sale of the Madrid property was a deliberate and contumacious disposal of an identified asset. Spanish advice concerning the absence of registration in Spain did not excuse breach of the English order. D2 could have applied for a variation but did not do so. Her recent cooperation and role as primary carer reduced the sentence, but did not justify suspension. Nine months’ immediate imprisonment was imposed for the sale. Six months was imposed concurrently for assisting the transfer, and three months concurrently for exceeding the living-expenses limit.
5. Suspension and totality. The breaches concerning the property could not be remedied, so suspension would not secure future compliance. There was no general requirement to suspend short custodial sentences because of prison overcrowding, and the Sentencing Bill was not law. The principle of totality was applied to D2’s concurrent terms.
6. Counterclaim. The court was not persuaded that the principle relied on from Hadkinson v Hadkinson was engaged. Alternatively, debarring D1 from pursuing his counterclaim would have been disproportionate and unjust. The application was refused.

Orders of committal and warrants of committal, with a power of arrest, were directed.