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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cooke v Smart [2002] EWCA Civ 1050 (28 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1050.html Cite as: [2002] EWCA Civ 1050

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(Mr Recorder Corbett QC)

		Royal Courts of Justice Strand London WC2 Friday, 28th June 2002

1. LORD JUSTICE THORPE: This is a short appeal against sentence brought by Joseph Smart against the order of Mr. Recorder Corbett QC sitting in the Northampton County Court on 24th May. The Recorder had to consider a committal application asserting some ten breaches of protective orders made in the court in favour of Mrs Cooke. Paragraph 1 said that Mr. Smart was forbidden to use or threaten violence against Mrs Cooke and must not instruct others, encourage or in any way suggest that any other person should do so. Paragraph 2 said that Mr. Smart was forbidden from intimidating, harassing or pestering her. Paragraph 3 forbade Mr Smart to go to or be in Yarwell Square, Camp Hill, Northampton, the location of his home.
2. The evidence advanced was that within less than an hour of service this appellant was in breach of the order. The extent of his breaches was tried out over the course of no less than three days in the county court. Some of the breaches, indeed the majority, were found proved. Some of the breaches were admitted. Some of the breaches were not sufficiently clear to satisfy the Recorder. In the end, there were registered against the appellant five breaches, occurring on the 27th March, 28th March, 29th March, 1st April and 2nd April. That run of days was interrupted by the 30th and 31st March which were weekend days, and over that weekend the Recorder found that the appellant had been in Newcastle. He had taken, with both hands, the opportunity to challenge and flout the authority of the court, from first hearing of the order, for a period of five days but effectively, adding in the weekend days, a period of a week.
3. The Recorder dealt with sentence reasonably succinctly. He went through the list of breaches, fixing to each in turn the sentence he thought appropriate. But he prefaced that exercise by saying this:

" . . . I have listened to the evidence and I have formed certain views about this and I think you can be a very dangerous man if you set your mind to it, and you certainly make other people afraid that you are going to be a danger to them.

Breaking these court orders was not just stupid, it certainly was not a lark, these are the court's orders. Judges do not make orders for fun. That is not the idea of it. You do not negotiate the orders and sort things out with the people you have been ordered not to go near or to pester. The court's told you, 'Don't do it.'

I have formed a view of the seriousness of this case. I think about your daughter. I think possibly more than you do, believe it or not."

4. He calculated the sum total of the sentences that he went on to impose, some consecutive, some concurrent, amounting to nine months. He then said this:

"It will be explained to you by your legal advisers that after a suitable amount of time in prison you can apply to what is called purge your contempt, and that means coming back before the court and satisfying the court that whatever demon it was that caused you to do these acts is out of your system. If I hear the application, and I probably will because it ought to be me, then I will listen with care, but remember this; it is bad behaviour and bad attitude that gets you into prison. Good behaviour and an improved attitude gets you out. You have the opportunity; take it if you can."

5. The appellant's case this afternoon has been extremely attractively presented by Mr. Sutton. He says that this is a case which nowhere near approaches the scale of nine months. There has been no actual violence in the case. Admittedly, there has been a series of breaches. They are all within a period of five days. Then look to the prelude to the sentence. The appellant was on bail for two months prior to sentence. It was a condition of bail that he lived in Newcastle. Throughout that period he was prevented from attending his university course in Northampton. He was prevented from contact with his daughter. Mr. Sutton says that this is a case for a suspended sentence of shorter duration. If he is wrong about that, he says that we should make a reduction of the sentence to one of two months' imprisonment which would permit immediate release. He accepts that an order might be made to continue the two protective injunctions for Mrs Cooke for as long as the court thought necessary.
6. It is common ground that the relationship between the parties which caused this extended litigation is now at a complete end. Mr. Cleaver has prepared a skeleton argument in which he really sets out all the competing submissions, inevitably stressing that the Recorder took a serious view of the case and was entitled to pass a sentence which was harsh.
7. I would define the short issue in the case, having heard submissions from counsel, thus: is the sentence imposed clearly shown to be excessive or is it only a severe sentence? In resolving that question, I think we must have regard to two important factors. One is that this is a judge who sat over the course of three days in order to resolve the dispute as to the breaches. Over that period he had a considerable opportunity to observe and to assess the appellant. He had a far better opportunity to assess the gravity of the conduct and thus the measure of penalty that the breaches found should attract. The other feature that seems to me important is, as the passage I have already cited makes plain, that the primary objective of the Recorder was to teach the appellant a lesson. There is something almost didactic in the final paragraph of the judgment, stressing the consequences of good behaviour after the consequences of bad behaviour. I would be loathe to interfere with the judge's discretionary conclusion unless it was shown beyond peradventure that he had fallen into error. Despite Mr. Sutton's able attempts, I do not think that manifest error has been demonstrated. Were this appellant to spend full nine months in jail, were he to spend even that which is required, then indeed it could be said to be a harsh sentence. The opportunity to purge is there loud and clear. It is important that the Recorder who imposed the sentence should hear the application to purge, as he has already indicated. The Recorder on that occasion will also determine what further protective orders needed to be made in the respondent's favour. For my part, I am not satisfied that it is necessary for this court to interfere. I would dismiss the appeal.
8. MR. JUSTICE WALL: I agree. Whilst severe, the sentence is not either disproportionate or excessive in the light of the number of breaches, their nature, and their timing - immediately following the orders of the court. It is plain from his judgment that the Recorder left open the prospect of the appellant purging his contempt, and I have no doubt that the Recorder will deal with that appropriately as and when the application is made. Speaking for myself, I see no reason for this court to interfere.
Order: Appeal dismissed; costs to be assessed insofar as necessary.