In ABC v DEF ( EWHC 3346 (QB)), the Claimant applied for committal of the Defendant to prison for contempt of court for repeated breaches of a harassment injunction. Mr Justice Stuart-Smith found the Defendant to be in contempt and but imposed a suspended sentence rather than an immediate sentence of imprisonment.
The Claimant lives in London with his wife and children. The Defendant was his brother-in-law, who had lived in the United States for many years. The Claimant had provided financial support to the Defendant for some time, until a severe falling out led the Claimant to cut all ties. In April 2008, the Claimant sued the Defendant in harassment, alleging abusive emails, phone calls, and publication of derogatory content. Sullivan J granted an interim injunction. The Defendant, who remained outside the jurisdiction, seemingly ignored the injunction and continued to harass the Claimant. A warrant for the Defendant’s arrest was issued in the event that he should ever return to the United Kingdom.
The Claimant then proceeded to trial with the Defendant unrepresented, winning his claim. HHJ Seymour QC (sitting as a Judge of the High Court) granted a permanent injunction. The Claimant suggested in his evidence that the Defendant may have been suffering from a mental disorder.
In April 2011, the Defendant returned to the UK and was arrested upon arrival. Mrs Justice Sharp (as she was then) subsequently found that the Defendant had breached the Interim Injunction in seven respects and committed the Defendant to prison for a period of four months. Shortly thereafter, the Defendant applied to purge his contempt, pleading that he was a changed man.
The Claimant did not oppose the application but it was made clear that neither he nor his immediate family wanted any further contact with the Defendant. The Defendant told the Court that he would return to the States the following day and that he understood that the permanent injunction remained in place. The Court found his contempt purged and released him.
In 2013, the Defendant again began to harass the Claimant with threatening emails. The emails included threats of further harassment and violence against the Claimant and his wife, and told of the Defendant’s willingness to go prison. The Defendant suggested an intention to return to the UK in May of that year and the Claimant subsequently made his first application for committal. The Court issued a warrant but refused to hear the substantive application in the Defendant’s absence.
The Defendant did not in fact return to the UK until September 2014, by which time his solicitors had made an application for strike out on grounds of abuse of process. In response, the Claimant issued his second committal application, alleging further breaches.
All three applications came to be heard on 17 September 2014. The Defendant argued that the Claimant’s applications were an abuse of process on grounds of delay, the fact that the Claimant could have blocked receipt of emails from the Defendant’s account, thus avoiding any alarm or distress and that the Claimant had failed to make full disclosure to the Court concerning the Defendant’s serious mental health problems.
Mr Justice Stuart-Smith found the contempts proved and dismissed the Defendant’s application. The delay was obviously caused by the Defendant’s absence from the jurisdiction. The suggestion that the Claimant should have blocked the emails was ‘ridiculous’ – they should not have been sent and the Claimant was entitled to know the threats that were being made against him. The Claimant had clearly informed the Court as to the Defendant’s mental health problems in his evidence. It was for the Defendant to show, if he so contended, that his health condition either rendered his conduct reasonable or constituted mitigation.
The evidence before the Court was that the Defendant had a longstanding history of bipolar disorder, albeit one that was treatable and that the Defendant had failed at times to take responsibility for his own recovery. The Defendant had also suffered from alcohol abuse, addiction and a serious back affliction. These conditions the Court found to be significant mitigating factors, but they did not come close to justifying his conduct.
Whilst the breaches had been serious and followed previous breaches, Mr Justice Stuart-Smith held that to imprison the Defendant would probably aggravate his mental condition and that would not best serve the objective of protecting the Claimant and his family. At the time of the hearing the Defendant was sober and taking medication and it was in the best interests of the Claimant that the Defendant remained stable. By imposing a suspended sentence, the Court struck a balance between reflecting the seriousness of the breaches and maximising the likelihood of future compliance. The Defendant was sentenced to a term of imprisonment of seven months, suspended for two years.
Whilst the Court’s reasoning may seem sound, it does beg the question as to at what point repeated breaches of orders will be punished with immediate imprisonment. Mental health problems, of a lesser or greater severity, are a common feature of harassment cases. Indeed, one might argue that someone of sound mind is unlikely to engage in persistent harassment. Bringing harassment proceedings usually involves significant expense for the Claimant which often goes unrecovered, the obtaining of an injunction being the primary objective. It is therefore of vital importance that such injunctions are enforced where necessary. The health, and particularly mental health, of a defendant will always be of relevance to any sentencing exercise, although it should of course be remembered that victims of persistent or severe harassment are themselves at risk of suffering injury to their mental health.
This post originally appeared on the Brett Wilson website and is reproduced with permission and thanks.