B4/2006/0571, B4/2006/0571/A
Neutral Citation Number: [2006] EWCA Civ 743
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COLCHESTER COUNTY COURT
HIS HONOUR JUDGE YELTON
 
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 11th May 2006
 
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE GAGE
MR JUSTICE HEDLEY
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ANITA MARGARET WOOD
CLAIMANT/APPELLANT
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BRIAN ANTHONY COLLINS
DEFENDANT/RESPONDENT
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(DAR Transcript of 
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MR J COLLINS (instructed by Messrs Fisher Jones Greenwood LLP, Norfolk House, 23 Southway, Colchester, CO2 7BA) appeared on behalf of the Appellant

MR N ELCOMBE (instructed by Messrs Ellisons, Headgate Court, Head Street, Colchester, CO1 1NP) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE GAGE:  Anita Wood, the appellant, seeks to appeal an order made by HHJ Yelton at the Colchester County Court on 6 March 2006.  By his order the judge found that the respondent, Anthony Collins, was in breach of a non-molestation and occupation order and committed him to prison for 28 days, suspended on condition that Mr Collins did not enter a defined area in which Miss Wood lived and worked.  Miss Wood seeks to appeal the order on the ground that it was unduly lenient.  

2.	The background facts are as follows.  Miss Wood and Mr Collins had a relationship for two and a half years which ended in September 2005.  They have a daughter aged almost one, who lives with her mother.  Following the breakdown of their relationship, Miss Wood sought a non-molestation order against Mr Collins and an occupation order forbidding him from entering, re-entering, visiting or loitering in the vicinity of her home.  She alleged that Mr Collins had sent her abusive text messages and harassed her in a number of different ways.  Mr Collins denied the allegations.  

3.	At a hearing on 2 November 2005, Deputy District Judge Atwood made an order granting cross-injunctions against each party.  He also attached powers of arrest to the orders.  Following the making of that order Miss Wood alleged that, starting with an incident on 4 November 2005, Mr Collins continued to harass her in such as way as to be in breach of the injunction made against him.  She applied for a committal order.  Mr Collins was arrested on 19 November 2005.  He was brought to court and granted an adjournment in order to obtain legal representation.  Miss Wood alleged that his abusive conduct continued.  

4.	On 3 January 2006, a hearing took place before District Judge Mole at which allegations and counter-allegations were ventilated.  In the result, the district judge found six allegations made by Miss Wood proved.  In summary, they were:
(1)	On about 4 November 2006 Mr Collins caused damage to Miss Wood’s car by scratching every panel of the car with a key.  
(2)	On 10 November 2005 Mr Collins entered the shop where Miss Wood worked and became aggressive.  
(3)	On 16 November 2005, outside Miss Wood’s place of work, Mr Collins called her a “slag” and threatened to kill her.  
(4)	On 17 November 2005 Mr Collins confronted Miss Wood in a butcher’s shop and threatened her.  
(5)	On 9 January 2006 when Miss Wood was returning home from work, Mr Collins approached her in the vicinity of the church with, as the district judge found, the intention of deliberately encountering her and harassing and pestering her.  In the course of this encounter Mr Collins threatened Miss Wood.  
(6)	On 10 January 2006, outside the same church, the district judge found Mr Collins engineered another meeting with Miss Wood.  
The district judge accordingly found Mr Collins to be in breach of the injunction made against him and sentenced him to a total of six months’ imprisonment.

5.	Mr Collins appealed the decisions of District Judge Mole and the appeal was heard by HHJ Yelton on 7 February 2006.  The judge dismissed the appeal against the findings of breach of injunction, but allowed the appeal against sentence by reducing the period of imprisonment from six months to 28 days.  This permitted the immediate release of Mr Collins.  The transcript of the proceedings before HHJ Yelton shows that at one stage the judge made to Mr Collins’ counsel an observation which he repeated in his judgment:

“If your client breaches the injunction again he is going to get six months’ minimum, is he not, from most judges.  I am not tying my hands if it comes in front of me.”

As I have said, in the course of his judgment reducing the sentence, he repeated that observation.  

6.	I come now to the incident which led to the judge’s order of 6 March 2006.  Miss Wood alleged, and the judge found, that on 27 February 2006 before going to work in The Triangle shopping centre in Frinton-on-Sea, Miss Wood was telephoned by a friend who told her that she had seen Mr Collins walking with his dog in an area past which Miss Wood would have to walk on her way to work.  As a result of this information, Miss Wood asked her friend to take her to work in her car.  On reaching her destination, as she got out of the car, Miss Wood saw Mr Collins across the car park.  He shouted at her, “I’ll find you soon, don’t worry”.  Mr Collins disputed this allegation.  His case was that at all times he was at home.  However, the judge found the allegation proved and that Mr Collins was in breach of the injunction.  Accordingly he imposed the sentence to which I have referred.

7.	The single ground of appeal is that the sentence was, in all the circumstances, unduly lenient.  The first point which this court must deal with is one raised on behalf of Mr Collins.  It is submitted on his behalf that Miss Wood requires permission to appeal before the appeal can proceed.  The appellant submits that she has an appeal, as of right, against the committal order made by the judge.  We believe that the Court of Appeal office accepted the notice of appeal on the basis that Miss Wood was entitled to appeal as of right.  

8.	Before dealing with that point, the following principles are common ground.  First, this court has power to entertain an appeal by an appellant who seeks to persuade the court that a penalty imposed for the contempt of court is unduly lenient: see Lomas v Parle [2003] EWCA Civ 1804, [2004] 1 FLR 812.  Secondly, for the purposes of the Civil Procedure Rules 1998, 52.3(1)(a)(i), a suspended prison sentence is a committal order: see Alan Wilkinson v Lord Chancellor’s Department (Official Solicitor intervening) [2003] EWCA Civ 95.  Thirdly, in exercising its power to increase a sentence of imprisonment for a civil contempt, the Court of Appeal acts on similar principles as the criminal division when dealing with an application to increase a sentence on an Attorney General’s reference, pursuant to section 36 of the Criminal Justice Act 1988.

9.	I turn now to the Civil Procedure Rules 52.3.  Sub-paragraph (1) reads:

“An appellant or respondent requires permission to appeal –
 (a) 	where the appeal is from a decision from a judge in a county court or the High Court, except where the appeal is against –
(i) 	a committal order; 
(ii)	a refusal to grant habeas corpus; or 
(iii)	a secure accommodation order made under section 25 of the Children Act 1989.”

10.	The Civil Procedure Rules were made pursuant to section 54 of the Access to Justice Act 1999.  In the Government of Sierra Leone v Davenport [2002] EWCA Civ 230 it was held that section 13 of the Administration of Justice Act 1960, which deals with appeals in cases of contempt of court, did not limit the effect of section 54 of the 1999 Act.  Accordingly, the issue on this point turns on the proper construction of the Civil Procedure Rule 52.3.  Mr Nicholas Elcombe for Mr Collins submits that by virtue of CPR 52.3, Miss Wood requires the permission of the court to appeal HHJ Yelton’s order.  His submission is that on a proper construction of part 52.3, the rule does not permit a disgruntled applicant on committal proceedings to appeal without permission.  He relies on (ii) and (iii) of sub-rule (1) as demonstrating that the right of appeal without permission is restricted to the contemnor who has lost his liberty.  He points out that in a case where no committal order had been made, an applicant might feel a far greater sense of injustice than if an unduly lenient prison sentence had been passed.  But in that instance, clearly such an applicant would have to seek permission to appeal, whereas if the appellant’s argument is successful the applicant would be able to appeal as of right against the unduly lenient sentence.  Such a construction would, in his submission, provide an anomaly.  

11.	Mr Dugdale in his skeleton argument submitted that CPR 52.3 is clear in its meaning.  It provides that both an appellant or a respondent require permission to appeal except where the appeal is against a committal order.  In his submission, this sub-rule cannot be construed other than providing that an applicant does not require permission to appeal a committal order on the ground that it is unduly lenient.  

12.	The question of whether or not an applicant requires permission to appeal a committal order has arisen directly in one case considered by this court, and indirectly in another.  In Lomas v Parle, an appeal in which the appellant sought an increased sentence, the court stated that the appellant had an automatic right of appeal without prior permission.  However, the judgment does not show whether or not that statement was made following argument on the point or was conceded.  Thorpe LJ, who gave the judgment in the court, has said that he believes that the contrary was never argued.  In the Government of Sierra Leone v Davenport, to which I have already referred, the point arose indirectly.  The court in that case found that the order being appealed against was not a committal order and therefore the applicant, the appellant, required permission.  However, Laws LJ in a short judgment expressly reserved for the future the argument on the point which directly arises in this appeal.  He said in his judgment, paragraphs 32 to 34:

“32. I would only wish to reserve for the future a question which might arise, though it does not directly do so in this case, in the context of the requirement of permission to appeal with which my Lord has dealt.  
33. Mr Morgan submitted that if the words ‘committal order’ in Part 52.3(1)(a)(i) of the Civil Procedure Rules mean, as my Lord and I agree they do, an order committing a person to prison, then having regard to section 13 of the Administration of Justice Act 1960 the claimant who sought the order as well as the respondent against whom it was made would enjoy a right of appeal without permission.  Presumably the only basis upon which a claimant would file such an appeal would be in an attempt to persuade the court to vary the committal order so as to extend its length.  This would be an anomalous result.  That is perhaps obvious, but one reason would be that on this basis the claimant would require permission to appeal in a case where he might have the greater complaint, that is where the judge below had refused to grant a committal order at all.  
34.  I only say that I consider that it may be that Part 52.3(1)(a)(i) should be construed so as to contemplate an appeal without permission only on behalf of the contemnor.  The reasoning would be that what the subordinate legislator had in mind was an appeal against the making of a committal order at all.  That would not avail the claimant.  Provisionally I consider that the better view, but it is not this case.”

Mr Elcombe’s submissions echo Laws LJ provisional views.  

13.	I am bound to say that I can see force and some logic in Mr Elcombe’s submissions, but for myself, I have great difficulty fitting his arguments with the plain words of the rule.  The appeal in this case is an appeal against a committal order.  I find it very difficult to see how the rule can be construed as restricting the right of appeal without permission to the contemnor, and not to both the applicant and the contemnor.  I would hold that in this case, permission is not required.  Additionally, as Thorpe LJ pointed out in argument, these cases, whether appeals by an applicant for a committal order or by a contemnor, must be dealt quickly, whether or not it is an appeal by one or other.  In the circumstances there are in my judgment good reasons for holding, as I have held, that no permission is required by either an applicant or a contemnor.  However, if I am wrong in this conclusion, Mr Dugdale in the alternative tells the court that he would apply for permission to appeal and if it were necessary to do so, I would grant permission.

14.	I turn now to the merits of the appeal.  We now have, late in the day, a transcript of HHJ Yelton’s remarks when making the suspended committal order.  Having discussed with counsel for Mr Collins the question of a condition to be attached to any order that he made, he went on to say to Mr Dugdale, counsel then for Miss Wood, as follows:

“Mr Dugdale, I am not going to ask your client for her views on sentence because the Court of Appeal said you should not do that.  But it seems to me that your client would be protected if I suspended an order upon the Respondent not complying with all the other terms of the injunction, and also not going within three miles of Frinton railway station – because Kirby Cross is within three miles of Frinton railway station, is it not?
Mr Dugdale:  Yes, I am told it is.”

Later, Mr Dugdale said:

“Your Honour having prefaced those remarks by saying you were not asking my views on it, I am in a rather difficult position.”

Very shortly after that, the judge announced his decision in the following way:

“Stand up, Mr Collins.  It seems to me that this case clearly requires a custodial sentence – not only because I told you last time that it would bring such a sentence, but also because although they are only words, it is frightening for the Applicant and it seems to me to indicate, as has been said, that you will not let things go.  
So, I shall sentence you to 28 days’ imprisonment, because I have to make it commensurate with the breach.  But I shall suspend that on terms firstly that you comply with the existing injunction; and, secondly that as from 4.00pm on Monday, 13 March you do not go within a three mile zone of Frinton railway station for the remainder of the period of the injunction.  It seems to me that that will protect you and it will also protect, more importantly, Miss Wood.  So, that is an additional term upon which it is suspended.  If you breach it, it will in effect come into operation almost automatically once proved.”

15.	Mr Dugdale argues that taking into account the context in which the breach of the injunction occurred, the judge was bound to impose an immediate period of custody.  Furthermore, he submits that the period of any sentence should have been a good deal longer than 28 days.  These were, in his submission, repeated breaches.  There were threats and intimidation.  There was a lack of remorse and, Mr Dugdale submits, the public is now far more aware of orders made by the court and will have considerable concern if the failure to comply with such orders is met with a sentence which is not one of immediate imprisonment.  He points to the fact that this was a contested application and that any apology given subsequently by Mr Collins must be seen in that light.  

16.	For Mr Collins, it has been submitted by Mr Elcombe that in the circumstances of this particular breach of the injunction, the sentence passed by HHJ Yelton was appropriate.  He relies on the fact that the breach was a relatively trivial one and involved no violence.  The fact that Mr Collins has found new accommodation away from where Miss Wood lives and works, and was prepared to be subject to the condition imposed by the judge, makes it far less likely that there would be any future breach.  Indeed, he points to the fact that since the order has been made, there have been no further difficulties between these two parties.  So, it is submitted that the judge was quite entitled to pass the short sentence and suspend it.  In any event, he submits that, even if it is found to be lenient, it was not unduly lenient.

17.	In my judgment, the sentence was unduly lenient.  The breach of the injunction took place only three weeks after the hearing of the appeal by HHJ Yelton in respect of the previous breaches.  Those breaches were much more serious, but this incident follows a pattern of abusive harassment of Miss Wood by Mr Collins.  The judge had made it quite clear when he reduced the sentence of six months passed by District Judge Mole to 28 days that any subsequent breach would be met with an immediate committal order.  It is true that it is a breach which did not involve violence, but as Mr Dugdale pointed out, this court in Murray v Robson pointed out that courts today take a much more serious view of conduct when it amounts only to words rather than violence.  It was said in that case that the lack of violence was not sufficient to reduce the gravity of the matter.  This incident, considered in the context of Mr Collins’ previous conduct and against the background that the court’s earlier orders, in my judgment merited a term of imprisonment and a longer one than the 28 days.  For my part, I would quash the sentence of 28 days and for it substitute a sentence of three months.

18.	The question then is, should it or should it not remain a suspended sentence?  I can see the force in what the judge was endeavouring to do, which was to put a stop to this behaviour by Mr Collins.  Taking that factor into account, and taking particularly into account the double jeopardy factor, it seems to me that the justice of the case will now be met by the suspended part of the order, on the term provided by the judge, remaining.  Accordingly, for my part, I would increase the prison sentence to three months, but keep the suspended part on the term imposed by the judge in the way in which he announced it.  

19.	To that extent, I would allow the appeal.

20.	MR JUSTICE HEDLEY:  I entirely agree with everything that my Lord has said and would add only this: that unlike in criminal proceedings, in family proceedings there is an inherent tension between penalising breaches and securing compliance for the future.  In my judgment, whilst I entirely agree that the length of prison sentence was inadequate to mark the gravity of what occurred on this occasion, there were circumstances in the light of obtaining future compliance which justified the learned judge in suspending the sentence in the manner that he did.  I would not think it right for us to interfere with his approach, given the aim that he had in mind.  

21.	I accordingly agree that the appeal should be allowed to the extent indicated by my Lord.

22.	LORD JUSTICE THORPE:  I agree with both judgments.

Order:  Application allowed.