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14 November 2018

The Importance of compliance

In our last article, we referred to the unfortunate position that Mrs Byrne found herself in when she was committed to prison for contempt of court. Many readers of the news reports will have been shocked to read that she was given two sentences of three month’s imprisonment to run concurrently. Harsh though this may seem the sentences were described by the judge in his judgment as being ‘short sentences, indeed as short as I can possibly make them, but having thought about them as much as I can, I think that they adequately reflect the authority of the court and also send a clear message of deterrence’. The judge was not prepared to suspend the sentence but did say that Mrs Byrne would only need to serve one half of the period in custody and would be released shortly before Christmas and her birthday. He also reminded her that she could apply to purge her contempt. But why was the punishment so severe?

The judge referred to certain guidelines for sentencing laid down by the Court of Appeal in 2000 being:

  • imprisonment is not an automatic consequence of breach of an order;
  • the full range of criminal sentencing is not available but there is a range of things that the court can consider, including taking no action, imposing a fine or sequestrating assets, or suspending a sentence of committal;
  • if imprisonment is appropriate the term should be decided and then the question of whether to suspend decided separately. The question of suspension again is separate but it is often appropriate to link it to future compliance;
  • there are two essential objectives: to mark the court’s disapproval and to secure (where possible) future compliance;
  • the length of committal must bear a reasonable relationship to the maximum of two years; and
  • reasons should be given.

The judge went on to say that:

‘In my opinion, there has to be a very clear message that, where people are given every opportunity to comply with court orders like this but still choose to ignore them, firm punishment will follow. I do not consider that a financial penalty or any order for the seizure of assets would be sufficient in this case. The only sentence that could be justified as a mark of the seriousness of this contempt is one of imprisonment.’

The judge took into account a number of mitigating factors put forward on behalf of Mrs Byrne, not least that she was a woman of good character who had made a positive contribution to society; was in her mid 60’s; had certain health issues; she had not given untruthful evidence; and her contempt had arisen ‘principally out of a sense of misplaced loyalty’ to her elder brother but he found that:

  • she had had every opportunity to comply with the orders and she had received very clear warnings about the consequences of any findings of contempt;
  • at the time the orders were made Mrs Byrne agreed that she would and could produce the documents ordered. She knew precisely what she had to do and had chosen not to do it;
  • Mrs Byrne was well aware of the prejudice that had been caused to Mrs Hart through her lack of information;
  • until the day of the sentencing hearing, Mrs Byrne had expressed no remorse at all for the contempt she had shown; and
  • overall her contempt had been deliberate, damaging, sustained and motivated. The judge regarded these as being serious aggravating factors. Referring to the language of the Criminal Justice Act 2003, Mrs Byrne’s contempt had caused deliberate financial and emotional harm to Mrs Hart.

Whenever considering sentencing for contempt the judge has got to give careful thought to whether or not there should be a coercive element within the sentence. In this case the judge did not feel it appropriate to include a coercive element.

The judge came to this conclusion having carefully considered what was said in an early ‘Russian oligarch’ case about sentencing in this field:

‘First it upholds the authority of the court by punishing the contemnor and deterring others. Such punishment has nothing to do with the dignity of the court and everything to do with the public interest that court orders should be obeyed. Secondly, in some instances, it provides an incentive for belated compliance, because the contemnor may seek a reduction or discharge of sentence if he subsequently purges his contempt by complying with the court order in question.’

Many people going through divorce proceedings may feel that it is easy to disobey court orders and get away with it. This case shows that the court does expect its orders to be complied with and will not tolerate non compliance.

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