Lomas v Parle

This is the judgment of the court to which we have all contributed. On 16 September 2003 His Honour Judge Harris QC sitting in the Liverpool County Court sentenced the respondent, whom we will hereafter refer to as the husband, to two sentences of four months concurrent for contempt of court in twice breaching injunctions granted under section 42 of the Family Law Act 1996 for the protection of the appellant, whom we will hereafter call the wife, from domestic violence. Against such sentences there is an automatic right of appeal to this court without prior permission. The sentencing power of the trial court is, however, restricted to a maximum of 24 months by section 14 of the Contempt of Court Act 1981. Almost always these appeals seek reduction of sentence. Indeed none of us has before sat on an appeal such as this which seeks to increase the sentence. There is no doubt, however, of the court’s power to increase sentence. The case of Wilson v Webster[1998] 2 FCR 575 illustrates the use of the power. However it is a power to be exercised sparingly: see the judgment of Lawton LJ in Linnett v Coles [1987] QB 555. More recently the power has been equated to the power of the Criminal Division of this court to increase sentence on an Attorney-General’s reference. It was Lord Justice Judge in the case of Neil v Ryan[1998] 2 FLR 1068 who said at 1069F:

That then defines our primary task in the present appeal, initiated by the wife’s notice of 3 October 2003.

However there has been less guidance on the inter-relationship of the Family Law Act 1996 and the Protection from Harassment Act 1997. When this case was first listed on 27 October we noted that there was insufficient information in the papers on the parallel prosecutions of the husband under the Protection from Harassment Act 1997. Furthermore the otherwise helpful skeletons prepared by junior counsel did not address the correlation of sentences passed on the husband in the family proceedings and sentences which he had received or was yet to receive in the criminal justice system. Accordingly we adjourned the appeal to the 30 October. In that brief interim Mr Ben Hytner QC has been instructed to lead Miss Goodman. He has inherited the brief from Mr Timothy King QC and we have helpful skeletons from each. Equally Miss Macur QC has been instructed to lead Mrs Pratt and we have from her a chronology of the Protection from Harassment Act proceedings as well as helpful additional skeletons. So our secondary task is to consider the interaction of the two statutes and the interaction of parallel proceedings brought under each in different justice systems. We will first record the history, consider the legislative provisions and the authorities, then express our conclusions on the appeal and finally give guidance for the future.

It is necessary to record the essential chronology of the efforts of the courts in the family justice system and the criminal justice system to protect the wife from domestic violence and to punish the husband for his persistent breaches of their orders. As a prelude to the history of the litigation we only record that the husband and the wife commenced their relationship in about 1992. Their only child, G, was born in 1994. They were married in June 2000. By May 2002 their relationship had become extremely fraught. On 29 May the wife was subjected to a night of intimidation and threats to kill.

On 30 May 2002 the husband was arrested and charged with threats to kill and two charges of common assault. He was released on bail with conditions not to approach the wife.

However on 2 September 2002 the husband visited the former matrimonial home and threatened the wife. Accordingly on the following day he was brought before the court for breach of bail conditions and remanded in custody until 9 October.

Before that hearing took place the wife commenced proceedings under the Family law Act 1996. On 4 September the district judge made an order without notice restraining the husband from approaching within 100 yards of the wife’s home, from threatening violence against her and from molesting her. The orders were extended on 6 and 13 September, again without the husband’s attendance, and the power of arrest was attached.

On 8 October the husband did appear, but in custody, and the order was extended until 31 January 2003.

On the following day the husband appeared in the crown court. He pleaded not guilty to the charges laid on 30 May and was remanded in custody. The trial was fixed for 22 October but the wife did not attend and accordingly the trial was adjourned for seven days and bail was granted with conditions.

The husband took advantage of bail persistently to harass and threaten the wife between 27 and 30 October. For these breaches of the Family Law Act injunctions he was sentenced on 31 October to a term of 56 days imprisonment.

On his release at the end of November the husband appeared before the crown court and pleaded guilty to the two counts of assault. No evidence was offered in respect of the threats to kill and the husband was released on bail to appear for sentencing on 18 December. He did not appear on that day and a warrant was issued for his arrest.

The arrest was not effected until 4 February and in the interim the husband seized the opportunity to resume his campaign of harassment and threats. Harassment between the 18 December 2002 and 4 January 2003 was made the subject of charges under section 2 of the Protection from Harassment Act 1997 in the magistrates court. Harassment on 11^, 12 and 16 January and 1 February 2003 was made the subject of a committal application for breach of the Family Law injunctions.

Accordingly in February 2003 the husband appeared before the crown court, the magistrate’s court and the county court for sentence. On 4 February, when arrested on the warrant, he was sentenced to a community rehabilitation order of twelve months duration with a direction to attend the Domestic Violence Programme on each of the common assault charges to run concurrent. For breach of bail he received a twelve months conditional discharge.

On the following day the husband appeared in the magistrate’s court and pleaded guilty to the harassment charge. The matter was adjourned for sentence and he was granted bail with conditions.

On 18 February Judge Lynch in the county court sentenced the husband to four months’ imprisonment for his contempt in breaching the non-molestation orders.

Sentence was passed in the magistrate’s court on 26 March. The husband received a two year conditional discharge and a restraining order was made under section 5 of the Protection from Harassment Act 1997 without limit of time.

On 17 April the husband was released from the sentence imposed by Judge Lynch. On that same day occurred the first alleged breach of the restraining order. Further breaches were alleged on 19 April, 5 May, 6 May and 15 May. The husband was charged with these five breaches and a pre-trial review in the magistrate’s court was fixed for 4 November 2003.

On 24 July the wife applied for the husband’s committal alleging four breaches of the Family Law Act injunctions, extended to six by amendment of the 3 August. The six breaches were all alleged to have occurred between 25 April and 26 June 2003. The only breach common to the committal application and the charges in the magistrate’s court was the breach of 15 May 2003.

The husband’s response to this third committal application was both initially and by a statement made as late as 11 September 2003 to deny all the wife’s allegations. However at the hearing before His Honour Judge Harris on 16 September 2003 he admitted not only the breach of 15 May but also the sixth and final breach, namely sending a number of threatening and abusive text messages to the wife’s current partner between 20 and 26 June 2003. For reasons which we will subsequently examine, Judge Harris sentenced the husband to four months imprisonment concurrent on each of the admitted breaches.

Part IV of the Family Law Act 1996 is headed Family Homes and Domestic Violence. Its provisions are very familiar to family lawyers. Sections 42-49 inclusive deal with non-molestation orders. Section 42 empowers the court to grant non-molestation orders and section 47 to attach a power of arrest.

The provisions of the Protection from Harassment Act 1997 are less familiar to lawyers who do not practise in the magistrate’s courts. Accordingly we set out in full sections 1-5 inclusive.

The legislative scheme is relatively clear. Section 2 creates a simple offence of harassment for which the maximum sentence is six months on summary conviction. Section 4 creates the more serious offence of putting another in fear of violence. The maximum sentence on summary conviction remains six months but for a conviction on indictment the maximum term is five years. By section 5 the court sentencing for an offence under either section 2 or section 4 may make a restraining order. Subsequent breach of a restraining order is punishable on summary conviction by a term not exceeding six months but on conviction on indictment the maximum sentence is again five years.

Perhaps unusually in a criminal statute, section 3 creates a civil remedy. The victim of actual or apprehended harassment may launch a damages claim in either the High Court or a county court. The civil court may also grant an injunction restraining harassment. In the event of breach of the injunction application may be made to the court for a warrant for the arrest of the defendant. However section 3(6) provides additionally that breach of an injunction within the civil proceedings also constitutes a criminal offence. Conviction for that offence is punishable by a maximum sentence of six months on summary conviction or by a maximum sentence of five years on conviction on indictment. This civil remedy appears to be seldom used.

Miss Macur points out that, by virtue of section 24(1)(b) of the Police and Criminal Evidence Act 1984, an offence under section 3(6) is classified as an arrestable offence, since it may result in a sentence of five years imprisonment. Thus if the breach of injunction is treated as a crime arrest may be effected without the need for an application for a warrant under section 3(3).

Section 3(7) and (8) are also remarkable in ensuring that there can be no duplication of process. If the breach of the injunction is punished as a contempt of court there can be no conviction in the criminal justice system under section 3(6). Equally if the breach of injunction results in a criminal sentence it cannot also be punished as a contempt of court.

Little has been said in the previous decisions of this court on the inter-relationship between civil sentences for contempt and the sentences in the related criminal proceedings. In the case of Wilson v Webster Sir Stephen Brown P observed:

Sir Patrick Russell in his concurring judgment said:

However in the guideline case of Hale v Tanner [2000] 1 WLR 2377 this court specifically considered parallel proceedings under the Protection from Harassment Act 1997. Before the court was the contemnor’s appeal against sentence for breach of Family Law Act injunctions. However in the course of her judgment Hale LJ recorded at 2379H the following:

That is no doubt the foundation for the following paragraph which concludes the guidance given by Hale LJ:

It is now necessary to look in some detail at the judgment of Judge Harris. He began with a careful review of the history. He noted that Judge Duncan must inferentially have accepted the wife’s case to the effect that the husband was a drug abuser with a controlling, possessive and aggressive personality. He noted that in a threatening communication of 11 January 2003 the husband had said: ‘slag, slut, I am going to do you in. I don’t care if I die. I could have got you on Sunday night outside your mate’s house, but I will wait’.

In relation to the visit of the 16 January 2003 Judge Harris said:

Judge Harris then recorded the breaches for which he was sentencing the husband as follows:

Judge Harris concluded this summary with the following findings:

Judge Harris then made two significant findings as follows:

Given that review of the history and those findings how did Judge Harris arrive at sentences totalling four months in all? Essentially he explained that he had been moved by Mrs Platt’s mitigation to repeat rather than increase the sentences imposed by Judge Lynch. The judge’s reasoning is contained in two paragraphs at page 19 of his judgment as follows:

We have some difficulty with that reasoning. It appears to us inconsistent with the first finding on the previous page of the judgment, recorded in paragraph 34 above. That finding surely precluded a sentence on the basis that the husband had learnt his lesson and turned over a new leaf.

Furthermore, as Mr Hytner points out in the course of what for him was the novel experience of a plea in aggravation, the job was no more than a job offer, and the girlfriend was just that and certainly not a partner or a cohabitee. Mr Hytner further emphasises that the husband’s removal from Liverpool was not voluntary but a requirement of his bail conditions. Exclusion from the City of Liverpool adds little to the protection contained in the original injunction and repeated in all subsequent injunctions.

Mr Hytner draws the court’s particular attention to the sentencing guidelines formulated by the Criminal Division for convictions under the Protection from Harassment Act 1997. He cites the authority of Liddle v Hayes [2000] 1 CR APP R(S) and the following passage from the judgment of Curtis J:

Whilst not submitting that the sentencing exercises can be correlated by a reduction to 40% to reflect the proportionate difference in the maximum sentences set by statute in the two fields, he nevertheless submits that six months would be appropriate for a second offence in a case with this history and therefore that Judge Harris for a third offence should have adopted a considerably higher starting point, particularly in a case where the plea of guilty was too belated to deserve much reflection.

Miss Macur does not dispute Mr Hytner’s presentation of the husband’s present circumstances. Rather she reminds us of Judge Harris’ very great experience in this field. She emphasises that it is apparent that the judge was endeavouring to break the cycle of recurrent proceedings and a vista of future confrontations between the husband and the courts. The sentence was buttressed by further protection for the wife and, in reserving the case to himself, Judge Harris gave the husband the clearest warning that there would be heavy punishment for any future breach.

Despite the considerations urged by Miss Macur we are of the clear opinion that the sentences of four months’ imprisonment concurrent were not merely lenient but unduly lenient. This was a case with an appalling history of intimidation and abuse. At every turn the husband had flouted the orders of the court and seized any leniency as little more than an opportunity to resume his campaign against the wife. The two breaches in respect of which he was sentenced were both individually extremely sinister in their presentation and implication. We are of the opinion that a sentence of less than ten months’ imprisonment would have been unduly lenient. We only fixed a lesser sentence to reflect the element of double jeopardy. Accordingly the sentence which we passed on 30 October was a sentence of eight months’ imprisonment concurrent on each of the admitted breaches.

As this appeal demonstrates it is not difficult for a persistent course of domestic violence to generate concurrent proceedings in three courts. Furthermore, as this appeal alsoillustrates, they may not be brought in relation to the same incidents or offences. In other cases, the same incidents are the subject of criminal and of family proceedings.

The victim of domestic violence has some choice of civil remedies. Protection may be sought under section 42 of the Family Law Act and under section 3 of the Protection from Harassment Act 1997. In our experience section 42 is the more usual choice. One attraction of the Family Law Act may lie in the court’s ability to attach a power of arrest to the non-molestation injunction, whilst s.3(3) of the Protection from Harassment Act necessitates a separate application for a warrant for arrest in the event of breach of the court’s injunction.

On the other hand s.3(2) of the Protection from Harassment Act offers the prospect of compensatory damages, which may be attractive in cases where the perpetrator has the means to satisfy an award. There would seem to be no bar on concurrent applications under both ss.42 and s.3 of these two Acts. In that event the application should be issued in the same court, consolidated and tried by a judge with jurisdiction in both civil and family.

In the criminal justice system the victim has little control of the proceedings. Charges alleging offences under section 3, 4 or 5 of the Protection from Harassment Act may be initiated in either the magistrates’ court or the crown court. In a case such as the present where there have been persistent offences some may be the subject of summary proceedings and some may proceed on an indictment. The conductof the criminal proceedingsis a matter for the police and the Crown Prosecution Service.

We feel that it would be helpful to offersome guidance on the inter-relationship between the Family Law Act 1996 and the Protection from Harassment Act 1997 as well as on the management of concurrent proceedings in the family, civil and criminal justice systems. The guidance which we give supplements that given by Hale LJ in Hale v Tanner.

However effectively the proceedings are managed a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act. Of course the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0 – 24 months. An important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. Nevertheless there will be a shared deterrent objective in the punishment of domestic violence by imprisonment.

Clearly therefore the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence. The defendant is often publicly funded to defend the proceedings in each court and may well have different solicitors and counsel in each justice system. There is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed and that a transcript of its judgment is made available to the second court, as Judge Harris directed in the present case.

Experience suggests that proceedings in the criminal justice system are likely to require more extensive preparation and to prove more protracted than committal proceedings in the family justice system. Therefore the application to commit should be issued promptly after the alleged breach and listed without delay. That discipline will ensure that, if proved, the contempt will have been punished before any sentence in parallel criminal proceedings.

Within the constraints of the two year limit on sentences for harassment in breach of protective injunctions granted under section 42 of the Family Law Act and the different scale which this necessarily involves, judges should as far as possible ensure that sentences passed under section 42 are not manifestly discrepant with sentences for harassment charged under section 3, 4 or 5 of the Protection from Harassment Act 1997. The experience of counsel before us is that the level of sentencing under the Protection from Harassment Act is very significantly higher than the present level of sentencing for comparable incidents leading to committal for breach of Family Law Act injunctions. Of course domestic violence may also be subject of other criminal charges varying from common assault to murder. The more serious the offences, the less scope there will be, in view of the two year limit, to maintain any relationship between family and criminal court sentences– if indeed such cases are brought before the family court at all.

As this case illustrates, sentences of imprisonment for harassment do not necessarily deter repetition. Those who molest others are usually trapped in an obsessional emotional state derived either from a past relationship (unresolved feelings of hate or love) or from a fantasy (compelling feelings of attachment to a near stranger). For domestic violence, anger management programmes are widely available and referrals from the court have become commonplace. More extensive emotional management programmes might prove effective in helping some offenders to resolve such emotional attachments.

The above advice is based upon the existing procedures in the criminal and civil courts dealing with the same issues arising from the violence of one spouse or partner against the other. This appeal shows the unsatisfactory nature of the present interface between the criminal and family courts in such cases. It is expensive, wasteful of resources and time-consuming. It is stressful for the victim to move from court to court in order to obtain redress and protection from the perpetrator. Other jurisdictions are attempting to solve this problem. The State of New York is setting up integrated courts to hear both criminal and civil proceedings before one tribunal. The publication of the Domestic Violence Crime and Victims Bill is an opportunity, we would suggest, for a reconsideration of the present dual system and an opportunity to look into the possibility of integrated courts to see if they might avoid the problems which now arise.