Claim No. COP12437956
IN THE COUNTY COURT AT NEWCASTLE-UPON-TYNE
The Quayside
Newcastle-upon-Tyne
NE1 3LA

Monday, 17th October 2016

Before:

DISTRICT JUDGE JACKSON

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Between:

NEWCASTLE CITY COUNCIL
Claimant
-v-

CARL MURTHA SENIOR
Defendant

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Transcribed from the Official Tape Recording by
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Counsel for the Claimant: MR MCDERMOTT

Counsel for the Defendant: NOT KNOWN

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JUDGMENT
JUDGMENT

DISTRICT JUDGE JACKSON:

1.	My task today has been to consider an application by Newcastle City Council to commit Carl Murtha Senior in respect of alleged breaches of an injunction of this court, one of a number of injunctions in fact of this court, this one made on 7th July 2015, the relevant provisions of which, for today’s purposes, specifically forbid Mr Murtha from entering certain premises in Newcastle upon Tyne, which I refer to in this matter as P’s home.  
2.	The injunction was made within Court of Protection proceedings in respect of P, who is a 79 year old gentleman who the court has determined for other purposes lacks capacity but who lives alone supported by services provided by the applicant local authority.  The two allegations before the court are that Mr Murtha entered the premises in respect of which he was forbidden to enter on two occasions, both on 24th May 2016.  It is not in dispute that if the allegations are proved they do constitute breaches.
3.	It is alleged that Mr Murtha attended those premises on two occasions on that day, the first in the morning accompanied by his son, Carl Murtha Junior, and then again at about 10 o’clock in the evening, alone, when it is said that he asked what time it was.  The allegations are entirely based upon attendance at the premises.  There are no allegations of any behaviour in respect of the attendance.  All allegations are denied.  It is Mr Murtha’s position that since his release from prison, having served a sentence for previous breaches,  he has not been to those premises at all, quite simply just that and nothing else.  It is right to say that it is said on behalf of P that he is caused distress and anxiety when Carl Murtha Senior attends the property.  
4.	In terms of evidence, the bundle contains statements from Josie Reichart, who is P’s social worker, and PC Steven Rayburn who attended upon P on 25th May and Mr Clifford Renwick who is a health and social care officer for the local authority and has been aiding and assisting P for some five years now. 
5.	The statements of Miss Reichert and PC Rayburn are in the bundle but the contents are not in issue.  Cross-examination was not to be undertaken so neither attended in evidence.  The only live evidence we have heard is that from Mr Renwick and, of course, from Mr Murtha himself on his own behalf.  
6.	Mr Renwick tells us that P has been very reluctant to cause trouble, I think is the word he has used, within his family and is therefore reluctant to discuss any of these events.  He tells us that in the normal course of his work he attended upon P on 25th May this year, when P reported to him that Carl Murtha Senior and Carl Murtha Junior had been to the property in the morning and that Carl Murtha Senior had returned alone later in the day.  He observed smoked cigarette ends on P’s bedroom windowsill, which I think prompted his enquiry.  When he questioned P, he was again reluctant but disclosed that Carl Murtha Senior and Junior had been there in the morning.  His comment was that Carl Murtha Senior was out “of his head”.  He said he was better when he returned in the evening.
7.	Mr Renwick, in accordance with his obligations, duly reported these disclosures to the police and PC Rayburn attended upon P on the same day and PC Rayburn reports a rather agitated and distressed P but he only mentioned Carl Murtha Junior, no mention of Carl Murtha Senior.  
8.	Carl Murtha Senior has filed a statement in these proceedings but for reasons which are not obvious it was very late in the day, only a few days ago.  We determined at the start of these proceedings that clearly he has the right to attend and give evidence and having looked at his statement it is nothing that he was not going to say himself and in the interests of justice I determined to effectively, I suppose, grant relief from sanction and allow the statement into the case. 
9.	The issue in this case is quite simple.  It is that of the weight of the evidence.  The evidence, as I have summarised it, is of course hearsay.  There is no direct observation from an independent third party who can give evidence to this court that Carl Murtha Senior was at the premises on either of these occasions.  It is not in dispute that hearsay evidence is admissible but the argument is that in this case it is insufficient in terms of weight to achieve the required criminal standard of proof.  
10.	Inconsistencies in the evidence are highlighted.  Mr Renwick made a note immediately after the discussions with P but his statement is different in some respects.  He says quite firmly that the note is the correct evidence as it was written immediately following the disclosure.  There are inconsistencies about money.  In Mr Renwick’s statement it was never mentioned but to the police P disclosed that Carl Murtha Junior, I think, had in fact had some money.  There is no mention, as I have said, of Carl Murtha Senior in the police statement at all.
11.	There are some inconsistencies of evidence with regard to an alleged removal of a bottle of Lucozade from P’s fridge.  Mr Renwick’s statement suggests that this was discovered later, whereas P tells the police he took it then, that he knew that he had taken it.  Mr Renwick tells us that P, despite his difficulties, is an intelligent, articulate man and that his report is accurate.  He is not prone to fantasy.  
12.	Carl Murtha Senior places great store by the allegation that he was out of his head when he attended in the morning.  He admits to being a regular – but less than previously – heroin user but he said that it does not make him out of his head; it merely sends him to sleep.  He also says, I think, that he would never take heroin if he was going to see P. 
13.	In a rather interesting submission, he tells us that he is now living in a tent on the streets, as it were, and presents as being of no fixed abode.  He said quite frankly it would be easier to admit to these matters and to come to the likelihood of a return to custodial sentence where at least he would be sheltered, warm and fed and his requirements for drugs accommodated. 
14.	Section 4 of the Civil Evidence Act 1995 is put forward in support of the proposition that the hearsay evidence is admissible and it offers guidance as to how I should view it.  Mr McDermott has helpfully set it out in his position statement before the trial but I will summarise the relevant provisions.  First of all, we need to know whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement.  Clearly in these circumstances that cannot be so. 
15.	 Carl Murtha Senior has already indicated that he would have liked P to be in attendance but that is simply not possible.  He is an elderly gentleman who lacks capacity and it clearly causes him distress and anxiety to even talk about these matters and the effect of coming to court would be likely to be very significant.  The original statement by Mr Renwick and certainly his note was made contemporaneously and in the event he says it was made within half an hour of being told and we know that he promptly advised the police.  It is not multiple hearsay; it is firsthand hearsay, if that is the right expression, certainly as far as Mr Renwick is concerned. 
16.	Is there any reason for Mr Renwick to conceal or misrepresent matters in this case?  Clearly not.  I had the benefit of hearing from Mr Renwick and I think he is a truthful witness and I think he has a long association with P and seeks to protect him in the appropriate way.  He has no personal reason whatsoever to make up or fabricate any of this evidence.  In fact, it is quite the reverse, I think, because P quite clearly regards the prospect of getting people into trouble, putting it in its general sense, as being something that he very vigorously does not want to do.  He demonstrates that to Mr Renwick, who he knows well, and also to the police officer. 
17.	He has also submitted this context that these allegations have a ring of truth about them and do not appear to have any exaggeration.  There is clearly no exaggeration and they are limited in their content as to attendance when it would have been relatively straightforward to make further allegations.  This statement was made specifically for the purpose of these proceedings and it is Mr Renwick’s own note which was made immediately after the events. 
18.	There is no effort to reduce or to prevent a proper evaluation of this evidence.  It is clear and it is easy for Carl Murtha Senior to see exactly what is being alleged.  It seems to me that the consistencies of the evidence in no way detract from the power of the immediate disclosure of his presence at this property on this date.  I make it quite clear, if it needs to be made clear, that I have reviewed this submission  today on the basis of the evidence put in front of me today.  It has been said, and it is quite right, that I accepted a measure of hearsay evidence in previous committal proceedings involving Carl Murtha Senior but this is a very different ballgame today, if I can use that expression, and on the last occasion I did not have the opportunity of hearing Mr Murtha Senior himself. 
19.	My findings, quite simply, are that I have concluded that Carl Murtha Senior was at P’s home in the morning and the evening of 24th May of this year.  I am quite sure about this, I have no doubts, and it is proved to the appropriate standard.  That said, the inconsistencies do not detract from the main theme that runs through all of the evidence that he was there.  I accept Mr Renwick’s evidence that his note is an accurate clear record of what was said to him and that it is not something that he believes he would have got wrong. 
20.	Having made those findings, I must now go on to consider what we are going to do about it.  
21.	I have considered this matter very carefully and I am, to say the least, very well experienced in this case.  It seems to me that Mr Murtha has served a significant custodial sentence and that may or may not have done him some good.  He was released from that in February and this is the first allegation of breach some time later in May.  The local authority have helpfully indicated that they have nothing in the wings, no outstanding allegations at the moment.
22.	Life has taken, I suppose, a further downturn in Mr Murtha’s life in that his tenancy in Newcastle, which was in the vicinity of P’s home, has now been terminated.  He has been evicted  and is no longer in the area where P lives, although he does say he might go back to Newcastle and use some charitable intervention.  He is presently based in Felling in  a tent over the other side of the river. 
23.	I have had the benefit today of hearing from Mr Murtha.  I am satisfied that he fully understands his obligations and whilst he does not admit the breaches I think the reality is that he has no recollection of the time involved whatsoever for various reasons.  For all those reasons, it seems to me that any form of immediate custodial sentence would be inappropriate, despite the fact that it is clearly not without some attraction for Mr Murtha at this time.  The breaches are at the lowest end of the spectrum, the tariff.  It is not alleged that he has done anything wrong, certainly not of the type of taking P’s property which has been the flavour of previous allegations. 
24.	On that basis, I am not going to impose a new custodial sentence.  I do not even think I need to impose a suspended custodial sentence.  As it was put rather delightfully in the criminal and jurisdiction the expression “letting the matter lie on the fire” and that seems to me what we should do and Mr McDermott, I think, was about to tell me what that means in this jurisdiction and I think it means that I adjourn the sentence in respect of these breaches on the basis that they will be returned to the list and considered if any further breaches are proved during the period of the injunction that we now have.
[Judgment ends]