Case No: HV22F00032
In the Haverfordwest Family Court
9 March 2023
District Judge Pratt
District Judge Pratt:
- This is an application to commit to Mr Bradley in respect of alleged breaches of an undertaking dated 9 January 2023. This application with today’s hearing date was served by bailiffs and such certificate of service is endorsed with a statement of truth.
- The respondent has failed to attend today. I have an email saying that there is a family funeral which means that he cannot attend. I do not know what the nature of the funeral is, when the service is or what steps have been taken to deal with it. There is no positive suggestion of an alternative date or other proposal to attend at a different time, I do not have any application to adjourn. I simply have an uninformative email, with no supporting evidence, and that is not endorsed with a statement of truth.
- Firstly, I am satisfied that the applicant has been served with this application and knows that today is the date it is going to be dealt with. Secondly, do I proceed in his absence? Despite the suggestion that there is good reason, I have no evidence that there is. An email is insufficient. It seems to me that more needed to be done to avoid today’s hearing and overall the interests of justice requires that I proceed and conclude matters in a timely manner. In my view, the respondent had every opportunity to both attend, to take legal advice, to obtain criminal legal aid where appropriate and also to make any written reply. There is not any reply or written objection or statement in reply. Consequently, it seems to me that it is in the interests of justice to proceed today.
Law and procedure
4. I have to apply the criminal standard of proof, namely I have to be sure the facts are proven. If so, I have to consider whether there was an undertaking, the form and terminology of the undertaking, whether there is a breach of it.
5. The alleged breaches have been committed to paper and served and the respondent given ample opportunity to reply. If, in all those circumstances, that has happened and I am satisfied on the evidence that I have that there has been breach and that the breach is deliberate, I may find the respondent in contempt and commit accordingly. If I do so, I consider mitigation, the Sentencing Guidelines and impose any appropriate sentence.
6. The evidence I have had comes in the form of the evidence supplied by the applicant. There is a summary in statement form in the application. The applicant has sworn that evidence and also answered further questions and given evidence on oath. That is not controverted for the reasons that are obvious. The respondent is not here. Nevertheless, I have asked questions myself and confirmed the quality of that evidence. I do accept the applicant’s evidence to the criminal standard.
7. The general form of undertaking was signed personally by the respondent on 9 January 2023 and reads as follows:
“On 9 January, Mr Bradley promised not to use or threaten violence against Mr Hunt, nor would he intimate, harass or pester Mr Hunt and not instruct, encourage or in any other way suggest any other person do so. He is not to telephone, text, email or otherwise contact Mr Hunt, including by social networking and any form of electronic messaging. Mr Bradley promises not to damage, attempt to damage, or threaten to damage any property owned by Mr Hunt”.
8. The undertaking was given to the Court and signed in the face of the Court including the necessary penal notice. The penal notice reads:
“I understand the undertaking that I have given and that if I break any of my promises to the Court, I may be fined, my assets ceased, or I may be sent to prison for contempt of Court”.
9. There are two alleged breaches. The first is an incident on 18 February 2023 in Tenby near Boots, and the second is on 18 February 2023 in a petrol station at about 11.50 to 12 midday. I prefer and accept the evidence of the applicant and I accept it to the criminal standard. I am sure of the facts stated and I find as follows.
10. In respect of the first incident on 18 February 2023, in Tenby near Boots, the respondent parked on double yellow lines and appeared inebriated. He stared at the applicant, passed within inches to him and stopped. In my view, I am satisfied to the criminal standard this was a deliberate act of intimidation.
11. As to the second incident on 19 February 2023, I find that the respondent arrived at the petrol station being used by the applicant and parked in front of the shop, stood and stared. He then moved his car to within inches of the applicant. He wound down his windows and tried to illicit a reaction. I am satisfied the respondent was keeping himself up to date with applicant’s location by using the family’s various social media posts. Tracking seems to be to me a strong word because this information followed is in the public domain. However, he was clearly looking to see where they are in order to find their location from those social media posts.
12. I am satisfied that those two incidents amount to breaches of the undertaking. I am also satisfied to the criminal standard that he was deliberate in so breaching. Consequently, I find the respondent in contempt and commit him as follows.
Mitigation and sentencing
13. The evidence from the Applicant is un controverted. There is no express mitigation for the breaches, save as discussed when applying the guidelines below.
14. Firstly, I have to determine in accordance with the Sentencing Guidelines for Breaches of a Protective Order, Restraining and Non-molestation Orders. I have to determine the offence category. This seems to me to be a deliberate breach. It is neither very serious nor minor. Obviously, this Court sees breaches of injunctions which are more serious and more persistent. That does not make this breach any less serious, but it is not at the very top end of the culpability scale. Nor is it a minor breach. It may appear on the face of it that these matters are just short of reasonable excuse. However, it is the effects of the breaches in the form of the ongoing intimidation in relationship between the parties.
15. Secondly is the level of harm. This is not the most serious breach in terms of harm. There is, for example, no violence in these two incidents and interaction was limited. Nevertheless, it causes more than little or no harm and distress. In the context of this ongoing relationship between the various parties, this sort of ongoing intimidation and harassment does cause real distress. Consequently, I say that this is a culpability level B and a harm category 2 case. That means the starting point is about 12 weeks’ custody over the category range of a community order to one year’s custody.
16. In respect of the custodial sentences, I am satisfied that the custody threshold has been passed. This is a breach of an undertaking in a long-running dispute and as such does pass the threshold for custody. I take into account the ongoing effect this sort of behaviour has on the recipient of it and on the applicant and on his family. It seems to me it is unavoidable that a sentence of imprisonment should be imposed. This is a serious reprehensible behaviour which must be punished and controlled.
17. In my view, the shortest term commensurate with the seriousness is 14 days. I realise the starting position may well be measured in weeks. However, this is the first time that a breach has come before the Court. I take into account the fact that the behaviour was intimidating, distressful and harassing but fell short of the more serious cases that we do see.
18. Can the sentence be suspended? In taking into account the various features, there is, in my view, a real prospect of rehabilitation in the sense that the suspended sentence will act as a deterrent for ongoing breaches. This is the first time it has come before the Court as a committal application and this is the first finding that I have made of breaches of the undertaking. I also see that there is no specific violence on the two incidents. Luckily, the children did not appear to be excessively involved. In the second incident they appear somewhat oblivious and in the first incident whilst there was some comment from the applicant’s daughter such that she said, “Oh my God Dad, he looks wrecked and he shouldn’t really be driving his car”; that was the extent of it. Therefore, in my view, it is appropriate to suspend the sentence.
19. The sentence will be suspended for a period of 12 months, that is operational period. It will also be suspended on condition that future compliance with the non-molestation order that I will make now and also the undertaking which will also remain effective. Therefore, in conclusion, what that means is that if there is future breach and that is proven, this will automatically engage and there will be an additional period of 14 days’ imprisonment, and hopefully that will act as some form of deterrent.
20. That is the judgment of the court.