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By S
15/06/2012

Sentencing guidance for committal hearings

In Amicus Horizon Ltd v Thorley , Court of Appeal, May 30, 2012 (no transcript available yet), Mr Thorley appealed against an order sentencing him to prison for four months. Amicus Horizon had claimed for possession and an anti-social behaviour injunction against Mr Thorley after he had threatened both the employees of Amicus Horizon and his neighbours. The court made an interim injunction until the trial had been determined.

Mr Thorley was subsequently arrested for breaching the injunction and brought before the court. The court adjourned the question of whether Mr Thorley had breached the interim injunction to the trial and bailed him [I pause at this point to query what power the court had to bail him as on an arrest the matter must be finally dealt with within 28 days, but I digress]. Unfortunately, two months later, Mr Thorley was arrested again for two further breaches and these were also adjourned to the trial.

Mr Thorley was alleged to have breached the injunction by shouting and swearing at his neighbours and staff, being drunk and entering a communal lounge from which he was banned. He was sentenced to four months imprisonment and the judge also made a possession order against him.

Mr Thorley appealed to the Court of Appeal against the length of his sentence and the Court of Appeal allowed his appeal.

The Court of Appeal held that the Sentencing Guidelines Council’s definitive guidelines in relation to breaches of anti-social behaviour orders also applied to breaches of ASBIs. The guidelines suggested that Mr Thorley’s conduct was at the lower end of the category of behaviour which caused a lesser degree of harm and distress. The sentence of four months, however, was at the top end of that category and it was reduced to six weeks.

Comment

This is an important case and one we really should have written up a bit earlier (for which we apologise – sorry we are just all very busy). Until now, the Court of Appeal had repeatedly knocked back submissions that a sentence was manifestly excessive because in the criminal courts, under the sentencing guidelines, the maximum he would have got would have been x and he in fact got y.  The Court of Appeal had adopted a consistent line that there were no sentencing guidelines and it was a matter for the judge. This made sentences, even ones that appeared manifestly excessive, very hard to appeal against. (A good example is Longhurst Homes Ltd v Killen [2008] EWCA Civ 402 – even before two of the most forgiving LJs a sentence of 9 months wasn’t overturned).

It always struck me as odd that a person being sentenced in the civil courts was treated differently to those who were guilty of exactly the same thing in the criminal courts. But, fortunately, no more. This case and the relevant guidelines should go someway to curbing the more outlandish exercises of judicial discretion.

Posted in: ASB | Housing law - All
S is a barrister, based in London, who practices predominantly in housing and local government law.

3 Comments

  1. chief

    It’s difficult to be sure without seeing a transcript (of what was apparently a one-sided appeal), but I’m not sure I entirely agree with this.

    Surely there are some important differences? The maximum sentence is obviously different, the County Court has a far narrower range of sentencing options, especially so far as young people are concerned (how would you go about applying E7 of the guidelines in the County Court?), the guidelines fit into a very different procedural approach to sentencing, and in ASBI cases it is always open to the contemnor to apply to purge their contempt.

    While I think that sentencing for breach of ASBIs can be arbitrary and even capricious I am uneasy about trying to graft the ASBO guidelines into a process that they do not fit readily with.

    It’s unfortunate that this problem does not seem to have been given enough attention (yet) in relation to the proposed Crime Prevention Injunctions.

    Reply
    • S

      I take all of that into account, but I don’t see why they are not relevant to the length of prison sentence. If you are going to send someone to prison, it shouldn’t be for longer than someone would get in the criminal courts.

      It does beg the question, why aren’t there separate guidelines for the civil courts?

      Reply
      • chief

        That’s a very important point – I’m a firm supporter of there being proper guidelines for the civil courts. That should be true for all contempts really.

        Reply

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