Committal for Contempt of Court (and anonymity order): Ms B -v- Harbut
Case Number: J00PO910
In the County Court at Bournemouth and Poole
26 January 2024
Before:
Recorder L Ashby
Between:
Ms B
-v-
Mr Harbut
Judgment
RECORDER ASHBY:
1. I am dealing with sentencing Mr Harbut in the case of Ms B v Harbut, J00PO910, for contempt of court for failure to comply with a court order to return two dogs to the Claimant.
2. The background to the case I outlined when summarising the facts to counsel earlier. I am not going to repeat those now, but I am going to have them read into my judgment:
Background
3. The order to return the dogs was made on 12th July 2023 by Deputy District Judge Nother.
4. There was a first contempt application on 16th July 2023 that ultimately failed at a hearing on 15 August 2023. This was because no penal notice was attached to the first order at that point in time, and so it was bound to fail.
5. On 19 July 2023, before the hearing, there was an application to add a penal notice. Sitting as a District Judge, I added a penal notice on 3rd August 2023 and ordered personal service.
6. On 7th August 2023, the Court had a request from the bailiff for substituted service because they attempted to serve Mr Harbut personally, and the bailiff recorded that when Mr Harbut saw them, he ran away, but I insisted on personal service, nonetheless (which was subsequently undertaken).
7. On 14th August 2023, District Judge Powell refused an adjournment for Mr Harbut to go on holiday.
8. At the hearing on 15th August 2023 His Honour Judge Mitchell recorded that Mr Harbut did not attend. He dismissed the committal application, the first one that was made, because, as I said earlier, there was no penal notice. The enforcement was stayed pending appeal (because Mr Harbut appealed the decision of 12 July 2023).
9. A second contempt application, which is the instant one, was made on 25th August 2023.
10. On 30th August 2023, His Honour Judge Mitchell refused permission to appeal and deemed the application for permission to appeal, totally without merit.
11. On 11th September 2023, His Honour Judge Mitchell made an order, on the papers, but reminded the Defendant of all of his usual rights and listed the second contempt application before me sitting as a Recorder in October 2023.
12. I ordered bailiff service of that order on 22nd September 2023.
13. On 16th October 2023, the Defendant applied to adjourn because he had contacted the court about an appeal but not been told of the contempt hearing, and that is accurate. He had not been told of the contempt hearing, and that is what my order of 17th October 2023 reflects. I adjourned the hearing to 14 November 2023 and ordered that he should be personally served with all the relevant documents.
14. There was an application in October 2023 for substituted service, which I refused on the basis that it should be personal service in these types of cases. The proceedings were ultimately served on 26th October 2023.
15. On 14th November 2023, there was due to be a hearing of the contempt application before me. The Defendant produced a positive lateral flow test and said he could not attend. I gave permission for him to attend by video on that occasion. The Claimant subsequently produced some evidence showing, she says, that the lateral flow test was not genuine. I made no determination on that. I do not take that into account in sentencing today.
16. In any event, he told me at that point that he had not attempted to get legal advice and did not want it. He was reminded by me that the order remained in force and that there was no reference in the order to a courier, which was what he was saying was the issue. He said delivery of the dogs was to be arranged by courier; that is why he had not complied. I made it clear to him that there was no courier requirement in the order. So, even if he had been labouring under that misapprehension until that point, he was not to labour under it any further, and I warned him that if he did not come on the next occasion, he might face a bench warrant.
17. I ordered a transcript of the hearing in July 2023 to ascertain what discussion (if any) there had been about a courier and ultimately set it down for a contested contempt hearing on 8 December 2023. There was a request to adjourn that until January 2024 on 4th December 2023. I refused that on 6th December 2023 saying that there had been enough time to arrange legal representation and, in any event, of course, he had told me in November he did not want legal advice.
18. On 8th December 2023, His Honour Judge Mitchell heard the contempt application. He gave the Defendant the benefit of the doubt in relation to the alleged breaches on the weekend of the 15th/16th July 2023, but found the Defendant was in breach and in contempt because there was an ongoing contempt in relation to having failed to return the dogs. He made an order for the dogs to be returned via attending at Nottingham Police Station and adjourned the sentence.
19. The order makes no reference to Mr Harbut having to attend the police station in person, but I do understand that there was some discussion about it at that hearing. He did not comply with that order. His explanation was that his solicitor in criminal proceedings advised him not to comply with that because of the bail conditions. Whilst I was not necessarily persuaded that the bail conditions prevented him from asking somebody else to drop the dogs on that occasion, I understood that because there had been discussion about him potentially attending in person, I was not prepared to sentence him on that basis before.
20. On 14th December 2023, the matter was released to me. Obviously His Honour Judge Mitchell had dealt with the contempt, so ordinarily he would deal with the sentence, but the circuit judges are only here for a limited period of time in any year, so he released it to me sitting as a Recorder.
21. On 18th December 2023 Mr Harbut sent the Court an email saying that he was working away and would not be able to attend the sentencing hearing on 21st December 2023. On 19th December 2023 I ordered that the matter was to remain listed for the hearing on the 21st.
22. On 20th December 2023, at 16.11, I was told he had a doctor’s appointment as he had severe diarrhoea and vomiting, he said there was an appointment at three o’clock. He applied to adjourn. I dismissed that application to adjourn and gave written reasons for my decision (which are appended to this transcript) and issued a bench warrant.
23. Mr Harbut then attended the Court between Christmas and New Year, culminating in my order of the 28th December 2023, listing the matter for today and giving him further opportunity to comply with the order. I made clear to him at the last hearing that I would lay down some opportunities for him to attend to deliver the dogs (or not him personally but for somebody else to attend on his behalf) at the Nottingham Police Station on two occasions. I made it clear to him that is one way of complying with the order of 12 July 2023, but he is not limited to that. Mr Harbut told me on the last occasion he did, indeed, want to use the opportunity that I gave him in December, and I considered that although Judge Mitchell’s order allowed for him to arrange somebody else to attend to return the dogs, there had been discussion about him attending personally. I was mindful of his bail conditions and so I gave him a further opportunity. I also told him that if the dogs were not returned, there was a real risk that a custodial sentence might be imposed and he ought to be aware of that. I also told him no conclusions on sentence had been reached. I am glad that he has obtained counsel in the intervening time.
24. So, that is the rather prolonged history of this case.
The Present Position
25. Ultimately, where that leaves us is that Mr Harbut is, and has been, in breach of the court order since it was made on 12th July 2023. His Honour Judge Mitchell found Mr Harbut in contempt in December 2023 and I am dealing solely with sentencing him in relation to that.
26. Of some relevance, but obviously I am only sentencing him on the contempt that His Honour Judge Mitchell found, is that there have been a number of opportunities since then for Mr Harbut to comply with the order. Judge Mitchell gave him opportunities to comply which were not, in my view, limited to personal attendance at Nottingham Police Station to return the dogs, which is the subject of the order, and I have given him opportunities as well.
27. He has been represented by counsel today, Mr Colby, and Ms B has represented herself. The contempt application is dated 25th August 2023 and, as I say, has had the history that I have already outlined.
28. So, between July and December, the order had not been complied with. The dogs had not been returned, and Mr Harbut was in contempt for the entire period. That is a prolonged period of time not to comply with a court order on any measure of it.
Type of the Sentence
29. It has been evident to me that this is a case where these dogs simply need to be returned, and I have been reluctant to impose any kind of custodial sentence upon Mr Harbut until now for the reason that, in part, I want him to have the opportunity to return the dogs and this matter to be brought to a conclusion by returning them. He has had the opportunity from Judge Mitchell in December; also from me at the end of December.
30. What is put forward on his behalf in terms of mitigating is that it has proved rather difficult because these are Bully XL dogs, they need an exemption certificate, and I understand that presents some difficulties. But, even on the evidence I have been presented with, the attempts have not been made until the back end of 2023 in relation to the exemption certificates and Mr Harbut was in breach for contempt well before then.
31. No doubt his mind was focussed by my order on 28th December to take further steps, but they have still not been returned, and I am afraid it is too little too late.
32. I am not taking account of any of the allegations in the criminal trial because they are to be determined by the criminal court; I am not taking account of the allegations that are made in respect of Mr Harbut’s partner in any way. I am basing my decision purely on the contempt in this particular case.
33. I add that in the context of this case, I refer to and annexe to this judgment my judgment in relation to Mr Harbut not turning up to the hearing in December. This shows there is a history of simply just not engaging with the Court in relation to these proceedings, not at every point but at some points.
34. The reality is this order has been in place since July. A penal notice was added in August, and despite opportunities on (not least) 8th December, 21st December and 28th December, these dogs still have not been returned.
35. I am very mindful that custody is an option only when it is so serious that nothing else will do, and that is why I have given Mr Harbut number of chances to comply with the court orders. He could have simply been sentenced in his absence on 21st December, but I gave him a further opportunity by issuing a bench warrant to obtain his attendance. He could have been sentenced on 28th December, but again I decided to give him a further opportunity, and I am not persuaded they have been taken.
36. So, we are in a situation, I am afraid, reluctantly, where I consider that this matter is so serious that only a custodial penalty will suffice.
37. I take account of Lovett and the approach to sentencing therein, and I adopt it. I have to take account of the culpability and harm. I do not consider a fine would be a sufficient penalty in this case for, I would have thought, self-evident reasons, but it simply does not reflect the nature of the breach or the harm caused in relation to it.
38. I have also borne in mind that I need to impose the shortest period of imprisonment possible which properly reflects the seriousness of the contempt.
39. I am taking account of the mitigation. The mitigation in respect of this case involves that he is working, that he is, on any measure of the evidence, presented by his employer as a valued member of the team. I take account of the fact that he does have a daughter, albeit I put lesser weight on that because he has not seen her of late. I do accept that he is paying maintenance towards her. Those things count in his favour. It seems to me, there is not a significant impact on other persons other than Mr Harbut.
40. I take account of the fact that he presented himself to the court and surrendered after the Christmas period, following the bench warrant.
41. There has not been a guilty plea. The matter was contested before Judge Mitchell. I do accept that the facts of the breach itself were admitted (not the contempt) but there was no other option but to admit that because it is self-evident that the dogs have not been returned. So, I do not consider that there is any discount for guilty plea in this particular case.
42. I have given serious consideration to suspending a prison sentence in this case. I am not going to suspend it. Given the chances afforded to Mr Harbut to return the dogs and his failure to do so I do not consider that a suspended sentence would secure compliance with the order. There is little impact in relation to others which would support suspending the sentence. I appreciate the implication with his job, but he has had every opportunity for some time now.
The Sentencing Guidelines
43. In terms of the sentencing guidelines, my view is that this is a deliberate breach falling between A and C. I am not going to put it in the persistent serious breach category, but I do think it is at the higher end of the deliberate breaches, and it is persistent. I have taken account of all of the facts in coming to that view.
44. In terms of the level of harm, there is not little harm in this case. The impact of not having the dogs returned and the proximity to the deadline for the dogs to be destroyed (given recent legislation relating to Bully XL dogs) is of great relevance but, nonetheless, I do not consider it falls within category 1. Nor do I consider it falls in category 3. So I consider on the guidelines this is a B2, albeit at the higher end of the B and the higher end of the 2.
45. The starting point for B2 is one month custody. The category range is for it to be adjourned at the bottom end and up to three months custody at the upper end.
Sentence
46. Taking account of all of those factors, the sentence I am going to impose is a two-month custodial sentence of immediate imprisonment (60 days). Obviously, Mr Harbut will only serve half of that. I do not accept that it is prejudicial to his upcoming criminal trial. It is very common in criminal proceedings that defendants are in custody and trials are prepared all day every day with people in custody. Sometimes it makes it easier to take instructions, sometimes not, but nonetheless, the trial is imminent, and so instructions will have been taken in relation to the substance of that. So, I have considered that as well.
47. It will be a sentence of immediate imprisonment, for two months (60 days). I consider, given the ongoing breaches and the contempt over that significant period of time and the impact of it, that is the minimum period which I can impose in this case.
48. Mr Harbut, you are hereby sentenced to a term of immediate imprisonment of 60 days. I understand the bailiff is going to take you down in a moment or two and they will escort you down to the cells in a few moments. You must, of course, go immediately with the bailiff, and you are, from this point, detained.
49. Mr Colby, is there any clarification?
50. The other thing I should say, of course, is that you have an immediate right to appeal this decision. You do not need permission, and your route of appeal is directly to the Court of Appeal within 21 days.
MR COLBY: I expect I will be instructed to appeal. Would your Honour be prepared to effectively…”suspend” may not be quite the right word but defer the sentence until the determination of appeal, otherwise the right to appeal might be of no benefit as it is unlikely to be heard in a month.
RECORDER ASHBY: No, it will be a matter for the Court of Appeal whether they suspend my decision in the meantime.
There is a costs application by Ms B.
[DISCUSSION AND ORDERS RELATING TO COSTS]
51. Is there anything in my judgment, Mr Colby, that you require any clarification or amplification on?
MR COLBY: I don’t think so.
RECORDER ASHBY: Thank you very much.
52. I should add I would be very happy to hear an application to purge the contempt if the dogs are returned. That is something else I bear in mind that there is, of course, the opportunity for Mr Harbut to do that. I make it clear that if the dogs are returned, I will be very happy to hear his application to purge.
53. Ms B, anything else from your perspective?
MS B: Thank you very much, your Honour.
RECORDER ASHBY: Thank you. In which case, if the bailiff would take Mr Harbut down, please.
ANNEXED BRIEF REASONS FROM DECEMBER 2023 APPLICATION
1. The hearing at 1pm today is listed to consider sentence for contempt of court, for failure to return dogs to the Claimant as ordered by the Court on 12 July 2023.
2. The Defendant applies to adjourn and/or to allow for remote attendance.
3. The application is nothing more than a bare assertion of illness along with a confirmation of a Doctor’s appointment. There is no medical evidence verifying the illness.
4. The Defendant had on 18 December 2023 written to the Court to request he could attend remotely on the basis that he was working away. This request was refused by me on 19 December 2023 and the Defendant informed on 20 December 2023. In those circumstances the Court treats this application with great caution.
5. The Defendant has made repeated requests to adjourn hearings or delay proceedings in this case, for example:
a) On 4 December 2023 he made a request to adjourn the hearing on 8 December 2023, as he wanted further time to arrange legal representation (having told the Court on 14 November 2023 that he did not wish to arrange legal representation). This request was refused by me on 6 December 2023 given more than enough time had been given to arrange legal representation.
b) At 15.34 on 13 November 2023 the Defendant provided a positive lateral flow test result (which the Claimant disputed the veracity of) as reason for not being able to attend a hearing on 14 November 2023, on that occasion I allowed remote attendance.
c) On 14 August 2023 District Judge Powell refused the Defendant’s request to adjourn the contempt hearing on 15 August 2023 for a holiday.
d) On 7 August 2023 the court bailiff (who had been instructed to personally serve the order that imposed the penal notice) provided evidence to the Court that the Defendant had deliberately evaded service, having seen the bailiff and run in the opposite direction. Nonetheless the Court insisted on personal service given the importance of the proceedings (which was subsequently effected).
6. The matter is listed for sentence of a contempt of court and a custodial sentence is one of the options the Court will consider. The Defendant will be in no doubt this is an option given previous hearings. The fact is not lost on the Court that this matter is listed just before Christmas and it is unlikely the Defendant will want to face the possibility of a custodial sentence at this time.
7. This is in the context of a case where the Court has already ordered return of the dogs as long ago as 12 July 2023, the same was subject of an appeal which was dismissed as totally without merit.
8. Further this is in the context of a case where the Defendant argued before the Court on 15 May 2023 that he had submitted evidence to the County Court in Bournemouth in mid January 2023 which cannot have been true as the case was not transferred to Bournemouth by that point (and the County Court at Portsmouth having confirmed no such evidence was received by them). This is a history of delay and lack of credible explanation for the same.
9. The Defendant has already been held to be in contempt of Court on 8 December 2023 and the matter should now proceed to sentence swiftly.
10. The Court does not accept the Defendant has proved (on the balance of probabilities) he is ill and/or that it would prevent him from attending. Instead the Court is of the view this is a further attempt to delay proceedings and avoid sentence in a case where the Defendant has sought repeated delays (including to this hearing), is in contempt and is facing sentence.
11. The application is refused and the hearing will proceed.
Anonymity Order
Before Recorder L. Ashby sitting in the County Court at Bournemouth and Poole, Courts of Justice, Deansleigh Road, Bournemouth, BH7 7DS
UPON hearing the Claimant in person and the Defendant in person
AND UPON the Court considering that an anonymity order is required in relation to the Claimant to prevent the Claimant from being identified as an alleged victim of serious sexual offences, this being necessary in particular as a transcript of the hearing on 26 January 2024 is required to be published on the website of the judiciary of England and Wales
IT IS ORDERED THAT
- The identity of the Claimant must not be disclosed pursuant to Civil Procedure Rule 39.2(4).
- A copy of this order is to be uploaded to the website of the judiciary of England and Wales pursuant to Civil Procedure Rule 39.2(5).