Committal for contempt of court: Timothy Hayes -v- Graham Butters

County CourtCommittal for Contempt of Court

Claim number: 6CB00392

In the County Court at Central London

10 February 2025

Before:

HHJ Hellman

Between:

Timothy Francis Hayes

-v-

Graham Scott Butters

Judgment on sentencing for contempt of court

HHJ HELLMAN

  1. On 17 July 2024, on a committal application brought by the Claimant, Timothy Hayes (“the Claimant”), the Court found that Graham Butters (“Mr Butters”) was in contempt of court in that he had committed two breaches of an injunction order made on 19 August 2020 and amended on 16 November 2023 (“the Injunction”). Both breaches were found to have been deliberate acts and both were found to have been proved beyond a reasonable doubt. The Court dismissed an application by Mr Butters, who was not present, to adjourn the hearing altogether, but adjourned sentencing to a date to be notified to the parties. Details of the adjournment application and the Court’s reasons for rejecting it are set out in the order made by the Court on that occasion.
  2. The relevant terms of the Injunction were that Mr Butters was forbidden (whether by himself or by instructing or encouraging any other person) from:

A. Engaging in contacting or communicating in any way whatsoever either directly or indirectly with Mr Hayes.

B. Provided that this would not prevent: …

b. communication solely on his own behalf with the Solicitor or direct access Counsel acting at the time of the communication for Mr Hayes as other party to legal proceedings in which Mr Butters was a party provided such communication was limited in occasion and content to what was necessary for the conduct of such litigation.

c. communication solely on his own behalf with Mr Hayes as other party to legal proceedings in which Mr Butters was a party provided such communication was limited in occasion and content to what was necessary for the conduct of such litigation.

The Injunction stated that, for the avoidance of doubt, in relation to both b. and c.:

i. necessary communications were limited to service of applications, responses to applications, court documents, documents being disclosed and witness statements, skeleton arguments, communications concerning the contents of court bundles, covering letters identifying contents only, and making, accepting or refusing offers;

ii. comment upon the contents of the communication or about any person was not necessary;

iii. justification was not necessary;

iv. repetition was not necessary;

v. statements of background facts (whether agreed or not) were not necessary; In relation to c.:
vi. no communication with Mr Hayes was necessary when he had instructed solicitors or direct access counsel to deal with a specific matter.

  1. The original Injunction tracked the wording of undertakings given previously by both Mr Butters and Mr Hayes. It was amended to make clear that communication with Mr Hayes’ legal representatives was permissible but subject to substantially the same restrictions as applied to communication directly with Mr Hayes.
  2. The purpose of the Injunction and the undertakings was to prevent the parties from harassing each other within the meaning of the Protection from Harassment Act 1997 through excessive and unnecessary communications, including correspondence generated in the course of litigation. This was in the context of various hard fought and bitter legal actions between them dating back many years.
  3. On 16 August 2022, following a contested hearing, the Court found that 12 allegations of contempt brought by Mr Hayes against Mr Butters for breaching the Injunction were proved. The Court sentenced Mr Butters to 28 days imprisonment suspended for one year on terms that he comply with the Injunction.
  4. On 21 September 2023, following a contested hearing, the Court found that 9 allegations of contempt brought by Mr Hayes against Mr Butters for breaching the Injunction were proved. Sentencing was adjourned to 16 November 2023, when the Court sentenced Mr Butters to 35 days imprisonment suspended for one year on terms that he comply with the Injunction.
  5. By committing the contempts found by the Court on 21 September 2023, Mr Butters had breached the terms of the suspended committal order made on 16 August 2022. The Court took no action for that breach, but noted its seriousness, and observed that any further breach of the Injunction would almost inevitably result in an immediate custodial sentence and the activation of the 35-day sentence.
  6. The two breaches of the Injunction found on 17 July 2024 took place on 19 November 2023 and 9 January 2024. They were therefore in breach of the suspended committal order made by the court on 16 November 2023 and took place shortly after that order was made. This is the third occasion on which Mr Butters has been found to have committed breaches of the Injunction and the second occasion on which he has been found to be in breach of a suspended committal order. Those are serious aggravating factors.
  7. The breaches found by the Court on 17 July 2024, like the breaches found on 16 August 2022 and 21 September 2023, involved Mr Butters sending emails when forbidden to do so by para A of the Injunction. The emails did not fall within any of the exceptions permitted in para B. There were fewer breaches found on this occasion than in August 2022 or September 2023. Considered in isolation, the breaches were less serious than the breaches found in September 2023, although the unnecessary comment giving rise to the finding of contempt in relation to the email sent on 9 January 2024 did involve an allegation against Mr Hayes, which in turn were less serious than the breaches found in August 2022. However all these breaches have had a cumulative effect. At the hearing today, as at the hearing in November 2023 (which did not relate to the present breaches), the court heard from Mr Hayes, who is in his seventies and in poor health. He explained in powerful and moving terms how the constant drip, drip, drip of email communications from Mr Butters had destroyed his peace of mind and caused him and his partner considerable anxiety and distress. The email communications from Mr Butters never stopped and as a result Mr Hayes was permanently on edge. Mr Butters continues to email Mr Hayes on a regular basis. I have been shown some of Mr Butters’ emails which post-date the hearing on 17 July 2024, although I am not in a position to make a finding today as to whether any of them breach the Injunction. Suffice it to say that from Mr Hayes’ perspective, the problem is ongoing.
  1. When sentencing, I take into account the sentencing principles for contempt of court as set out in such cases as Hale v Tanner [2000] 1 WLR 2377 CA and Wigan Borough Council v Lovett [2023] 1 WLR 1443 CA. In Lovett, which approved points made in Hale v Tanner [35], the Court stated that the objectives of sentencing for breach of civil contempt were, in order, ensuring future compliance with the order; punishment; and rehabilitation [39]. Custody should be reserved for the most serious breaches, and for less serious cases where other methods of securing compliance with the order had failed. If the court decided to impose a sentence of imprisonment, that term should always be the shortest term which would achieve the purpose for which it was being imposed [43].
  2. As to mitigation, I accept that Mr Butters is eighty years old and in poor health. His partner, for whom he provides support, is also in poor health. I accept that he would find the experience of imprisonment more difficult than would a younger, healthier person. The contempts are now somewhat stale, although had Mr Butters attended court on 17 July 2024 they might have been dealt with earlier. Mr Butters is concerned that if he were sent to prison his pension payments would be suspended and he and his partner would lose their home. I am not in a position to assess the accuracy of that statement. However, given the history of second chances and breaches of suspended sentences, the possible adverse consequences for Mr Butters of an order of committal carry less weight than might otherwise be the case.
  3. Mr Butters did not today express any remorse for the breaches. Indeed the burden of his submissions was to complain about the behaviour of Mr Hayes. He promised not to breach the Injunction again. But he made that promise at the hearings on 16 August 2022 and 16 November 2023. The Court explained the terms of the Injunction to him on both those occasions, and its terms are in any case pellucidly clear. Mr Butters may have meant what he said to the Court today about not breaching the injunction in future, as I was prepared to accept that he did at the previous sentencing hearings. But on previous occasions, once a suspended sentence has been passed, Mr Butters has nonetheless gone on to breach the Injunction again. I have no reason to conclude that the outcome of a further suspended sentence would be any different.
  1. Having taken into account the nature of the contempts and all the mitigating and aggravating features, I am satisfied that they are so serious that they require a sentence of imprisonment. The shortest term which will achieve the purposes for which the sentence is being imposed, chiefly ensuring future compliance with the Injunction and punishment for its breach, is 21 days. I therefore sentence Mr Butters to a custodial sentence of 21 days.
  2. I have considered whether the sentence should be suspended. I have concluded that it should not. The court has previously suspended two sentences of imprisonment for breach of the Injunction, but Mr Butters has gone on to commit further breaches. I am therefore satisfied that yet another suspended sentence would not be sufficient to secure compliance with the Injunction. Neither would a deferred sentence, which is what Mr Butters invites me to pass. For this purpose, ie securing compliance with the Injunction, nothing less than an immediate custodial sentence will suffice. Mr Butters must be released unconditionally once half the sentence has been served: see section 258 of the Criminal Justice Act 2003. A sentence of 21 days is therefore unlikely to have the catastrophic effect upon his housing situation that he fears.
  3. However, Mr Butters has a right of appeal to the Court of Appeal against the committal order. I should not make an order that would render that right of appeal nugatory. The sentence is therefore suspended for 28 days until 4 pm on 10 March 2025, and will take effect immediately thereafter. If within that period Mr Butters files a notice of appeal against the order and serves a copy of the notice on this Court (ie this Court must receive a copy of the notice by 4 pm on 10 March 2025) then the sentence will remain suspended until the determination of the appeal or further order of the Court of Appeal. I am allowing 28 days so as to give Mr Butters a further opportunity to find legal representation.
  4. As I have imposed an immediate custodial sentence in relation to the breaches found on 17 July 2024, I am not satisfied that to secure compliance with the Injunction it is also necessary to activate the 35-day suspended sentence imposed on 21 September 2023. Instead, I shall extend the term of suspension to run for a further 12 months from today until midnight on 9 February 2026. Mr Butters now knows that suspended sentences can and will be activated. If he is found to have committed after today any further breaches of the Injunction, it is most unlikely that the 35-day suspended sentence will not be activated.