Committal for Contempt of Court: Wye Valley NHS Trust -v- Murphy

High CourtKing's Bench DivisionCommittal for Contempt of CourtSentencing Remarks

Case Number: KB-2023-002162

In the High Court of Justice
King’s Bench Division

19 July 2024

Sentencing Remarks of Mr Justice Mould

Between:
Wye Valley NHS Trust
-v-
Sean Murphy

MR JUSTICE MOULD:

  1. Sean Murphy, I must now pass sentence upon you for contempt of court. You may remain seated.
  2. I approach the determination of your sentence in accordance with the guidance given by the Court of Appeal in Liverpool Victoria Insurance Company Ltd v Asef Zafar [2019] 1 WLR 3833. There are seven relevant considerations –

    1. The court should adopt an approach analogous to that in criminal cases where the Sentencing Council Guidelines requires the court to assess the seriousness of the conduct by reference to culpability and harm caused, intended or likely to be caused.
    2. In the light of its determination of seriousness, the court must first consider whether a fine would be a sufficient penalty.
    3. If the contempt is so serious that only a custodial penalty will suffice, the court must impose the shortest period of imprisonment, which properly reflects the seriousness of the contempt.
    4. Due weight should be given to matters of mitigation, such as genuine remorse, positive character, and similar matters.
    5. Due weight should be given to the impact of committal on persons other than the contemnor, such as children or vulnerable adults in their care.
    6. There should be a reduction for an earlier admission of contempt, to be calculated consistently with the approach set out in the Sentencing Council Guidelines on reduction in sentence for guilty pleas.
    7. Once the appropriate term has been arrived at, consideration should be given to suspending the term of imprisonment. Usually the court would already have taken into account mitigation factors when settling the appropriate term, such that there is no powerful factor making suspension appropriate, but a serious effect on others such as children or vulnerable adults in the contemnor’s care may justify suspension.
  3. I first consider culpability and harm. In my judgment, your contempt of court in this case has been very serious indeed. There is high culpability. I have found you guilty of a sustained and deliberate series of false statements and lies to a number of medical experts, with the clear intention of falsely exaggerating the true scale of the very minor impact of the surgery in 2017 upon you, to a massive degree. The true value of the loss that you suffered was less than 1% of the damages that, through your deliberate and sustained falsehoods, you attempted to secure.
  4. In early 2021, you deliberately caused your solicitors to verify court documents on your behalf. You did so in the full knowledge that those documents falsely and grossly exaggerated the impact of the surgery on you and the loss that you had thereby suffered. This was a clear and deliberate attempt by you to interfere with the due administration of justice.
  5. You might well have succeeded in your deception and received more than £500,000 in damages from the National Health Service, had a public-spirited person not alerted the National Health Service Fraud Line to your fraudulent actions and purpose. It is worthy of note that you began your fundamentally dishonest claim in early 2021, at a time when the National Health Service was in a position of peril, having spent the previous year managing the Covid-19 pandemic. A more egregious act of selfish and self serving deceit is hard to contemplate.
  6. As it is, your actions have caused actual harm. The NHS has paid you £40,000 by way of an interim payment before your fraudulent claim was uncovered. None of that money has been repaid. Interest is accruing. Your offers of repayment were at so a derisory a level, that they would not even have kept pace with the interest accruing on the principal sum.
  7. The National Health Service has incurred legal costs in the sum of £80,000 in defending your fraudulent claim. £10,000 in costs paid by the National Health Service to your former solicitors has been repaid, but by the same token your former solicitors will have incurred substantial fees in acting for you. The National Health Service has incurred the costs of this application, which amount to a further £50,000. Much time and effort will have been spent by the National Health Service in addressing your dishonest claim, which might have been much better spent in meeting the needs of the public.
  8. There is very substantial harm in this case.
  9. For these reasons, I am quite satisfied that a fine would not be a sufficient penalty in this case. I was referred to the guidance given in South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin) at [2] to [5]. In my judgment, that guidance applies with full force in this case. A custodial sentence is, as Mr Bradley rightly acknowledged, inevitable.
  10. I turn to the period of imprisonment. The maximum period of imprisonment allowed by law is two years. Both counsel referred me to North Bristol NHS Trust v White [2022] EWHC 1313 (QB), in which Ritchie J helpfully provides a table of recent sentences in committal decisions. Mr Bradley submitted that table suggested a range of between three to six months’ imprisonment. That is, at best, an informal range based on one judge’s researches.
  11. I find that you have shown little, if any, remorse in this case. You maintained your innocence, even seeking to cast a blame on your former solicitors, in your acknowledgment of service. You contested the permission application, you have maintained your innocence in respect of the most serious allegation relating to your inability to work, throughout.
  12. You entered a plea of guilty in relation to the allegation about inability to play rugby in December 2023, well after permission had been given in July 2023. The basis of your plea was, to say the least, disingenuous. Frankly, it was incredible. As a result, your plea has not resulted in any substantial saving in the burden of the contested hearing, with witnesses having to attend and face cross examination. I am therefore unable to give more than 10% credit for your plea.
  13. It is not suggested that I should take into account any antecedents. I shall proceed on that basis.
  14. There are other relevant factors in your favour. Mr Bradley tells me that you are a devoted father. Mrs Murphy attests to that fact in her letter. I accept what she says about that. I also accept that your immediate imprisonment would have a serious and disruptive effect on your wife and children. I have carefully considered the submissions made by Mr Bradley on the important role that you play in the welfare and progress of your son. It is clear from the evidence provided of his special needs, that your son is a vulnerable child, who benefits from the active presence and involvement of both his parents. I also take account of the vulnerability of your elder daughter and her care needs by virtue of her chronic health condition. I do not attach any significant weight to your own medical needs, which I consider would be managed to an acceptable degree in prison. All of these matters serve to mitigate the length of the term of imprisonment which I may impose.
  15. In my judgment, in the light of the matters that I have mentioned, the grave seriousness of your sustained contempt of court justifies a starting point of twelve months’ imprisonment. From that starting point I shall deduct four months, to reflect a small allowance for your guilty plea and a more substantial reduction in respect of the impact of imprisonment on your family, particularly your children.
  16. In my judgment, therefore, the shortest period of imprisonment that I am able to impose is eight months.
  17. I turn to the question of suspension. Notwithstanding the able submissions of Mr Bradley, I am entirely unpersuaded that I should suspend your sentence. I have found it appropriate to reflect the impact on your family in mitigating the length of the term, for the reasons that I have given. The evidence before me does not support the impact of your imprisonment being so serious on your family, including your children, that suspension is warranted. I have in mind, in particular, that two of your children are now aged eighteen, and can reasonably be expected to assist your wife during the period of your imprisonment. I have also in mind that your son is now settled at secondary school, with a support network of specialist teaching staff.
  18. Mr Sean Murphy, for the contempt of court that I have found proven against you, you are sentenced to eight months’ imprisonment with immediate effect. You may expect to be released after serving one half of that sentence.
  19. I shall make an order for costs in favour of the Trust, which I assess summarily in the sum of £50,354.02.

    LATER
  20. I am not going to order a stay of the execution of the warrant. I have no doubt there may be practical challenges in today’s prison environment in facilitating those who are in prison in obtaining legal advice, but that, in itself, in my judgment, is not a justification for staying the execution of the warrant in this case. That is a challenge which will be faced by very many people who find themselves sent to prison through criminal courts.
  21. I am quite satisfied for the reasons I gave in my judgment this morning, that applying established legal principles, this was a clear case of serious and sustained contempt of court, which was amply established to the requisite criminal standard by the evidence that was led before me in court. I am confident that the sentence that I have imposed is one which is just and proportionate in the light of those serious and sustained contempts.
  22. It is, of course, open to the defendant to renew his application for a stay at any time hereafter before the Court of Appeal.