HM Attorney General v Mr Elavi Dowie (also known as Mark Vincent Dowie)
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 13 April 2022 |
| Neutral Citation | [2022] EWFC 33 |
| Docket Number | Case No: FD21F00024 |
| Court | Family Court |
[2022] EWFC 33
Mr Justice MacDonald
Case No: FD21F00024
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Kathryn Howarth (instructed by the Government Legal Department) for the Claimant
The Defendant appeared in person
Hearing date: 13 April 2022
In Public
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
On 3 March 2022 I found Mr Dowie in contempt of court for the reasons set out in my judgment of that date. In accordance with the rules, that judgment was published as Attorney General v Dowie (Committal Proceedings) [2022] EWFC 25. That judgment was given following an application by Her Majesty's Attorney General for an order committing Mr Elavi Dowie to prison for contempt arising out of his alleged interference with the administration of justice. That application was brought under Part 19 of the FPR 2010 pursuant to FPR r. 37.3(3). Once again, Mr Dowie represented himself at this hearing. Once again, in circumstances where Mr Dowie is a serving prisoner, the hearing took place over CVP.
This court was due to sentence Mr Dowie for his contempt on 1 April 2022. However, due to an administrative error the case was not listed in open court at the court centre at which I was sitting, namely Preston, in accordance with the Lord Chief Justice's Practice Direction: Committal / Contempt of Court – Open Court of 26 March 2015 (and as amended on 20 August 2020). Rather, the case was listed in open court at the Manchester Civil Justice Centre. Given the strict nature of the procedural requirements pertaining to committal proceedings, I declined to proceed to sentencing in light of that administrative error and adjourned sentencing to today. As required, this matter has been listed in the Cause List at the Royal Courts of Justice as concerning committal proceedings regarding Mr Dowie and as being heard in public.
Within this context, and as required, sentencing proceeds as a separate and discrete exercise, with a break between the committal decision and the sentencing of the contemnor. The contemnor must be allowed to address the court by way of mitigation or to purge his or her contempt and Mr Dowie has been repeatedly offered that opportunity during this hearing.
SENTENCING PRINCIPLES
The general legal principles applicable to the sentencing of a contemnor are now well established and can be summarised as follows:
i) The court can order imprisonment (immediate or suspended) and/or a fine, or adjourn consideration of penalty for a fixed period or enlarge the injunction.
ii) In sentencing the contemnor, the disposal must be proportionate to the seriousness of the contempt, reflect the court's disapproval and be designed to secure compliance in the future.
iii) Committal to prison is appropriate only where no reasonable alternative exists.
iv) Where the sentence is suspended or adjourned the period of suspension or adjournment and the precise terms for activation must be specified.
v) Imprisonment is not the starting point and is not the automatic response to a contempt of court.
vi) Equally, there is no principle that a sentence of imprisonment cannot be imposed on a contemnor who has not previously committed a contempt.
vii) In assessing the seriousness of the contempt, it is right to have regard to the purpose for which it was committed and the likelihood of any risk to the process of justice.
viii) In circumstances where the disposal chosen must be proportionate to the seriousness of the contempt, where an immediate term of imprisonment is appropriate it should be as short as possible having regard to the gravity of the contempt and must bear some reasonable relationship to the maximum sentence of two years imprisonment that is available to the court.
ix) Where a term of imprisonment is the appropriate sentence, the length of the term should be determined without reference to whether the term is to be suspended or not.
x) Having determined the length of the term of imprisonment, the court should expressly ask itself whether a sentence of imprisonment might be suspended.
xi) The court should briefly explain its reasons for the disposal it decides to impose if it finds the contempt proved.
As Marcus-Smith J made clear in Patel v Patel and Ors [2017] EWHC 3229 (Ch) at [22] and [23], a penalty for contempt has two primary functions. First, it upholds the authority of the court by marking the disapproval of the court and deterring others from engaging in the conduct comprising the contempt. Secondly, it acts to ensure future compliance. In some cases therefore, and in particular those cases where the contempt arises from the breach of a court order, a penalty will have the primary objective of ensuring future compliance with that order. In this case however, the relevant proceedings are concluded. In the circumstances, in this case the objective of any penalty for the contempt is to uphold the authority of the court by marking the disapproval of the court of the contemnors actions and to deter others from engaging in the conduct comprising the contempt.
That latter objective will have particular resonance in cases where the conduct in issue has impeded the proper administration of justice (see Chelmsford County Court v Simon Abraham Ramet [2014] EWHC 56 (Fam) at [30]). Each committal application will, of course, turn on its own facts, both with respect to the question whether the contempt alleged is proved, as it has been in this case, and with respect to the sentence that is appropriate where that contempt is proved. However, as part of the sentencing exercise in this case, I have also borne in mind the need to deter others from recording private family proceedings and publishing those recordings online by making abundantly clear that by doing so they will place themselves at grave risk of an immediate sentence of imprisonment.
In circumstances the seriousness of the matter and the contemnor's culpability are the primary considerations for the starting point for any penalty, and for the question whether the custody threshold is passed, I note that, whilst a criminal case, in R. v. Montgomery [1995] 2 Cr App R 23 Potter LJ held that “an immediate custodial sentence is the only appropriate sentence to impose upon a person who interferes with the administration of justice, unless the circumstances are wholly exceptional”.
Having established the appropriate starting point, the court will then go on to take into account any matters that aggravate the offence and any factors in mitigation. With respect to mitigation, the factors will include any admission, whether any admission was made early, any apology for the contemptuous conduct and also any evidence of personal circumstances. In the context of publication contempts, aggravating factors may be assessed by reference to the factors identified in Re Yaxley (Practice Note) at para.80, as follows:
“(a) the effect or potential consequences of the breach upon the trial or trials and upon those participating in them; (b) the scale of the breach, with particular reference to the numbers of people to whom the report was made, over what period and the medium or media through which it was made; (c) the gravity of the offences being tried in the trial or trials to which the reporting restrictions applied; (d) the contemnor's level of culpability and his or her reasons for acting in breach of the reporting restrictions; (e) whether or not the contempt was aggravated by subsequent defiance or lack of remorse; (f) the scale of...
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