The case for fairer sentencing

Roger Pearson looks at two recent appeals which have highlighted the need for more guidance on sentencing in contempt cases.

Two recent Court of Appeal decisions serve as a signpost warning to courts throughout the country not to impose excessive sentences for contempt of orders in matrimonial cases, even if the contempt involves physical violence.

One appeal involved a husband who, in a jealous rage, dragged his estranged wife from a car and punched and kicked her causing injuries which were still obvious 10 days later. He was jailed by Judge Hutton at Cheltenham County Court for nine months.

The other appeal involved a husband who, during a chance encounter with his estranged wife while she stopped her car at traffic lights, grabbed the car keys through the window and forced the wife to drive him home. He was jailed by Judge Nash at Canterbury County Court for six months.

Both men were subject of non-molestation orders. In the first case (Dore v Dore) the husband was jailed on 2 June this year and was freed by the Court of Appeal on 31 July. In the second case (Mountjoy v Mountjoy) the husband was jailed on 18 July this year and was freed on 27 July.

The two cases highlight the lack of guidance given to judges on the tariffs for contempt. In Dore Lord Justice Ward, who was also senior judge in Mountjoy, expressed his concern about the matter and indicated he would make sure lower-tier judges are given better guidelines in future.

He said he would be drawing the matter to the attention of the Master of the Rolls and asking him to consider a review of past cases as guidance. Mr Justice Wall, who was sitting with him in the case of Dore, also emphasised the need for guidance.

In both appeals a number of previous contempt sentence appeals were cited including the case of N v N in which a husband who breached an injunction by returning to the former matrimonial home and raping his estranged wife in a pre-meditated attack was jailed for only six months.

In Mountjoy the solicitor for the husband was principal of Kent-based Hatfields, Chris Osmond, who instructed Nicholas Fairbank of Canterbury's Becket Chambers. He says cases such as these are a warning to courts of the need for vigilance when it comes to sentencing for contempt.

He says that the incident in his client's case was unpremeditated and the wife at worst might have been left with marks on her wrist. Her husband admitted that he was in the wrong, but nevertheless received a sentence equal to that of the husband in N v N who planned the attack on his wife.

"We thought the sentence was thoroughly excessive bearing in mind this was a first breach and that it stemmed from a chance meeting. The husband wanted to discuss the well-being of his 22-month-old son," says Osmond.

"I think the primary message for those responsible for sentencing in such matters has to be 'think long and hard'," says Osmond. "I did not think the husband would receive any immediate custodial sentence, although it might have been hard to go to the Court of Appeal if he had received a short one.

"Everyone needs to be ultra vigilant in these cases. This was the first time I had ever gone to the Court of Appeal, but it had to be challenged. You have got to get the right balance of judgement and fairness."