Case Number : B00WR679
IN THE COUNTY COURT AT WORCESTER
Date: 8th February 2017
DISTRICT JUDGE MACKENZIE
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Festival Housing Limited
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J U D G M E N T
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Mr Byrne appeared on behalf of the Claimant
The Defendant appeared in person
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Transcribed from the official tape recording by
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DISTRICT JUDGE MACKENZIE:
2. As I have already indicated, and I will come to in more detail in a minute, I find the two breaches proved but before coming to the history of how we got to this point, let me say this: I am disturbed and concerned that Ms Baker attends before me today without the assistance of any public funding or a solicitor. I am particularly concerned about that because on any view, Ms Baker is a fragile individual; has difficulty reading and writing; difficulty in understanding, though I have no evidence or indication to indicate to me that she lacks capacity to deal with matters. She is, however, a fragile and vulnerable individual and that makes it all the more regrettable that she has not got legal assistance.
3. I had to consider very carefully before I proceeded today, whether it would be right and proper to proceed when she wants to have a solicitor and has not got one. As I will explain in a minute, there has been a history to this case when she has had difficulty in getting solicitors before. I have to consider whether her human rights are irrevocably impinged, so that a fair trial cannot take place in this case, without her having legal advice. I have to say, I come very close to forming that conclusion, and I have explored that at the beginning of today’s hearing.
4. Ultimately, I have reached the conclusion that she can have a fair hearing, and that every opportunity has been afforded to her to prepare a case with assistance from a solicitor, but through no fault of her own, she has not been able to secure that. I am conscious that in earlier proceedings, particularly those before His Honour Judge Plunkett in September last year, when a Committal Order was made for, effectively, three months, that she did not have access to a solicitor at that stage.
5. The present run of breaches, going back to November, first came before me in December. From that time forward, efforts had been made to try and secure a solicitor for Ms Baker, but all those efforts have failed. On the last occasion, the remand hearing a week ago, I specifically directed that the court must use every effort to try and contact local solicitors to see if they were prepared to take her on.
6. That followed difficulties over the Christmas period when the matter first came before me on 23rd December in the immediate run up to Christmas. There was no solicitor available to deal with the case for Ms Baker. I remanded the case on bail until 29th December, and with very considerable effort, a solicitor in Redditch was found who seemed prepared to take her on, but was unclear about his ability to get legal aid.
7. Three of four years ago, the President of the Family Division made it clear that legal aid in these sort of cases, though it is for a civil contempt, is criminal legal aid. That has caused some difficulty, because of the way legal aid works with solicitors getting fragmented franchises for dealing with specific types of work. This court has experienced, on more than one occasion, great difficulties in getting a solicitor who is prepared to deal with criminal legal aid for a committal in breach of Housing Act injunctions. It has proved somewhat difficult.
8. It proved an impossible position for Judge Plunkett last September and it has proved impossible now to secure a solicitor for Ms Baker, despite efforts taken by the claimant and by the court and Ms Baker’s own efforts. It is wholly unsatisfactory that the system conspires against a vulnerable individual like this, so that she cannot get the legal aid and solicitor assistance that she really needs.
9. It is in that background that I have had to consider very carefully whether it was right to proceed, in potential breach of Ms Baker’s human rights, with a fair and proper hearing. Particularly I had to bear in mind, that the nature of her defence, from questions I asked on previous occasion, appeared to fall into four categories. Firstly, she appeared to say that she had an alibi for both incidents. That she was elsewhere and can produce evidence in support of that. Secondly, she was arguing that this was a case of mistaken identity. Thirdly, she has been arguing that she thinks the police officer in this case, WPC Lane, has, to quote her words, ‘got it in for her’, and that, consequently, is an argument of potential police oppression. Fourthly, a suspicion that there might be some CCTV footage that, if obtained, would exonerate her.
10. All those matters, potentially give rise to a line of defence which would better be explored by a solicitor assisting her. Knowing that, it is with great reservation that I have allowed the case to proceed today on the basis that it would be impossible to keep adjourning this case. I have taken the view that all those aspects of a potential defence could be explored satisfactorily, given the factual matrix of this case. So I have proceeded to deal with this committal and, as I have already said, I found the two breaches proved. Let me, however, put the matter in some context.
11. These proceedings have been going on for too long, and have been bouncing backwards and forwards to court since December 2015. The initial Anti-Social Behaviour Crime and Policing Act injunction was made on 17th December 2015. A first breach of that order came before His Honour Judge Pearce-Higgins on 23rd December 2015, when a breach was proved. A one day sentence was given, deemed served, for the period in custody on that occasion. A further injunction was granted on 3rd March 2016. A second breach took place and came before His Honour Judge Pearce-Higgins again, on 3rd May 2016. It was proved and a penalty of 28 days was given on that occasion. On 3rd August 2016, Judge Pearce-Higgins made, what was by then, the third injunction in these proceedings, and it is the breach of that third injunction, August 2016, that I am concerned with today.
12. It is important, I think, to bear in mind, that the real mischief behind this case is that Ms Baker has been begging in the streets of Malvern and Worcester; begging in such circumstances as to cause, not only a general nuisance but particularly a begging involving elderly and vulnerable people. It is a particular feature of this case that the injunction of 3rd August, which is alleged to have been breached on this occasion, was in the following terms: For the defendant to be “forbidden to beg, solicit or accept money from any person in the City of Worcester, and in particular, directly or indirectly from Bruce Green, Sarah Green or any member of their family.’
13. I do take on board very much that begging per se, though it can be a bit of a nuisance, is not something which is normally visited by anti-social behaviour injunctions and certainly not normally dealt with committal penalties, if it is straightforward begging. The real mischief of these injunctions was to stop the begging particularly of vulnerable individuals, and that is not a matter that I am concerned with today.
14. In any event, the third breach of the injunction took place and was dealt with by His Honour Judge Plunkett on 5th September 2016, when there were admitted breaches. It is important, I think, to bear in mind that the breaches were admitted at that stage. Again, as I have already alluded to, Ms Baker did not have the benefit of any legal advice on that occasion, because it could not be obtained.
15. His Honour Judge Plunkett gave a sentence of 80 days on that occasion, which appears to be a three month sentence, less a few days for time already served on remand. The 80 days duly sentenced, would have expired on 24th November 2016, one day before the first of the two breaches I am concerned with today took place.
16. So that is the history. I now come to deal with the two specific breaches that are before me today. The first of those is on 25th November 2016. I have heard evidence from Street Ranger, James Bell and from Police Officer WPC Lane concerning the events of that day. They both put evidence in written statements and because Ms Baker has difficulty in reading, although she had been given copies of those statements previously, the evidence from those two witnesses, has been given orally and the oral evidence confirms the written documents.
17. On the second incident on 2rd January 2017, I have evidence from the same two witnesses, plus the supporting witness from Mr McBurney who was with Mr Bell at the time and again, his evidence was given orally but it matches the written statement that is on court file and that Ms Baker has seen. I have no hesitation in saying that I find the evidence from Bell, McBurney and Lane to be straightforward, honest, compelling and accurate. So far as the defence of mistaken identity is concerned, the evidence appears to me to be overwhelming. Particularly WPC Lane knows Ms Baker well, over an extended period of time. The totality of that evidence leads me to conclusion that even applying the criminal standard of proof, which is, of course, the standard I must apply in these committal proceedings, I can have no serious doubt at all that the person begging on both occasions, was Ms Baker. I dismiss, entirely out of hand, any suggestion this is a case of mistaken identity.
18. So far as an allegation against WPC Lane is concerned, that she has ‘got it in’ for Ms Baker, again, apart from a wild assertion that that might be the case, I can see no supporting evidence or suggestion for that. Whilst that is something that might have been more fully explored had Ms Baker had legal representation, the allegation is thin in the extreme and there is no support for it.
19. So far as alibi evidence is concerned, which again had Ms Baker had legal advice might have been explored somewhat better, I am conscious that Ms Baker did have some initial advice from a solicitor on 29th December, when at least on that occasion, efforts that I and the court made managed to secure solicitor Mr Harper to represent her on that day. On that day, the suggestion of an alibi was put forward by Mr Harper. It is clear to me, that Ms Baker knew very well that if she wanted to run with that alibi evidence, she could and should get supporting evidence of that. In fact, her evidence is supported by her partner, Mr Copson, who attends with her today and helps her, and they both say that on 25th November, being the defendant’s deceased mother’s birthday, it is a date that she well remembers and her evidence, supported by Mr Copson is that although she lives in Worcester she had gone to Malvern on that day to be at her mother’s property.
20. She tells me that she would have had alibi evidence from her step-father and, perhaps more importantly, from a friend, Lane Pritchard. Lane Pritchard was supposed to be at court today, according to Ms Baker, but has not turned up. Mr Copson confirms Ms Baker’s alibi evidence that she was in Malvern, but I have to say I find the evidence of both Mr Copson and Ms Lane Pritchard to be uncertain, contradictory and unreliable. I do not accept that alibi evidence. There is no supporting alibi evidence either from the step-father or from Ms Pritchard, and even though the defendant did not have a solicitor, she knew how important it was to have alibi evidence before the court. She has had every opportunity to arrange that and has not done so. I find the prospect of that alibi evidence to be highly unlikely.
21. Finally, with regard to the CCTV footage, none has been obtained. I readily accept that the defendant acting without a solicitor would have great difficulty sorting that out, particularly because she has been held in remand for the last 14 days but there does not appear to have been any appropriate CCTV footage that the claimants could have obtained. In any event, I am satisfied that the direct evidence from Bell, Mc Burney and Lane is so compelling that an adjournment or a delay to try and extract that CCTV footage would be disproportionate and unnecessary, even bearing in mind the draconian penalty that may have to follow the findings of breach in this case.
22. The two breaches, starting on 25th November, resulted in Ms Baker being arrested only on 23rd December. It was the thick end of one month delay between the incident happening and her being arrested. That is wholly unsatisfactory. WPC Lane’s reason for that delay, when she had Ms Baker in her sight on 25th November and could have arrested her, was that the Christmas Fair was taking place in Worcester on that day and to be put it simply, the police officer had bigger fish to fry dealing with that, rather than arresting Ms Baker.
23. I appreciate that police officers have conflicting priorities, but to leave the matter a month, is most unsatisfactory. It is unsatisfactory for a whole host of reasons. Evidence, alibi support statements etcetera, become stale. It is not fair to a defendant to leave matters that long. In any event, it rather encourages one to the view that the breach is not really considered to be very serious. If it can be left for a month and an arrest takes place in a pretty lackadaisical way, nearly a month later. It does not detract from the fact that a breach has taken place. It may impact on the degree of seriousness I should take with regard to the breach.
24. Having been before me on the 23rd and then again on the 29th December, when I gave Ms Baker the benefit of the doubt and did not remand her in custody but, at her then solicitor’s request, gave sufficient time for the case to be explored properly and fix a trial for today, the 8th February, Ms Baker was then released. As I have already now found, she breached this injunction again on 2nd January, in pretty short measure after she was released on 29th December.
25. It is important, I think, for me to remind myself and record that on 29th December I could not have made it clearer to Ms Baker that ‘if’ these allegations were proved, and ‘if’, before the matter came back today, there was any repeat of it, then I think the wording I used was something along the lines, “… that the sky would fall in on her”. Certainly, I left her in no doubt at all that a further breach would have to be visited by a severe penalty from the court. She can be in no doubt that the court will have been talking in terms of several months’ worth of imprisonment. Even on the first breach of 25th November, never mind the blatant breach that took place on 2nd January, in such short measure, after she walked out of the court on 29th December.
26. So she was then brought before my colleague, District Judge Khan on 25th January, and wholly unsurprisingly, given the history I have recited now, Judge Khan felt that it was necessary to remand Ms Baker in custody, pending today’s hearing. Because that was more than eight days, she was remanded until last week, when the matter came up before me on 2nd February, to renew her remand. I did renew that remand and remanded her in custody. As I have already indicated, I caused the court on that occasion, to try and leave no stone unturned to find a solicitor for her today. She has, consequently, been incarcerated for the last 14 days and that will have to be taken into account in any sentencing I give, bearing in mind that period spent in remand is not automatically taken off any sentence that I now give.
27. There are aggravating and mitigating circumstances to this case. The aggravating factors, quite obviously, are the repeat and continuing disobedience of the court orders. One day, 28 days and three month sentences have already been passed in a relatively short period and they appear to have had no impact despite Ms Baker’s protestations that her last period in prison has taught her a lesson. It clearly has not. There has been an appalling history of disobedience to the court orders. The first breach that I now deal with on 25th November, took place, very speedily after her release from a three month sentence.
28. The second breach on 2nd January, took place only four days after she had been released by me on bail with very clear and severe warnings as to the consequences of continuing breach. On that basis, Mr Byrne, for the applicant, can be forgiven for saying that the court’s approach must be to ramp up any penalty: not starting from the one day; not starting from the 28 days; not starting from the three months that she has already been given but looking at the Sentencing Council Guidelines for breach of Anti-Social Behaviour Orders, and increasing the last three month penalty to something significantly more.
30. The mitigating factors appear to be this. Firstly, the real mischief of these injunctions was to stop begging involving vulnerable members of the public, and people known to Ms Baker. Both the incidents I am dealing with, had been begging from a Street Ranger, not a vulnerable individual. The real mischief that the injunction is targeting at has not been breached to that full extent. As I have already said, injunctions and sending people to prison for begging, as such, is not an attractive prospect. This is not a case where vulnerable individuals have been targeted on these two occasions.
31. Secondly, I am conscious that on both these two occasions, Ms Baker has simply asked for 50p. It has not been in an aggressive way. She has been told ‘no’ and she has not persisted. There is no aggravating feature in the way she has done this.
32. Thirdly, I take on board the nature of Ms Baker. She is, as I have said, a pretty fragile vulnerable individual and though I have no doubt that she knows what she is doing, she has got capacity to understand both what she did, and these proceedings, she is, frankly, a pathetic individual who has not been able to stop herself although the period in prison has possibly curtailed her from targeting the individuals that the injunction was particularly aimed at stopping.
33. So the breaches themselves, if not trivial, are at a very low end of the scale and something which the court would be very loathed to send Ms Baker to prison for, if anything else could possibly work but this court cannot simply give repeat injunctions and allow people to go continuing begging, continuing to persist in a nuisance to the population, without some real teeth being given to the injunction. I am afraid whilst I am very reluctant to send Ms Baker to prison for a lengthy period of time, I have got to mark the blatant repeat breaches of this injunction with something meaningful.
34. There would be a respectable argument for saying that the first breach on 25th November, being so speedily after she had been released from prison before, should merit a six month sentence, that is the 26 week custody, which would equate to the ‘serious category’ in the definitive guidelines from the Sentencing Guideline Council. That might be a sensible start for that first breach given the previous history that coincidentally is double, more or less, the previous sentence and that probably is a sensible start for that offence.
35. Following that through, given that the offence on 2nd January was entirely a free-standing and subsequent offence, the logical way of dealing with that would be to deal with a consecutive sentence for that second offence. If one was to apply the logic of an increment in sentence from what has gone before, one would be thinking about a consecutive sentence of longer than six months from the first offence. Nine months would perhaps be appropriate. If I were to adopt that view, that would be a totality of sentence of one year and three months. I just do not think that the relative trivial nature of the actual breaches I am dealing with, can possibly justify a period of imprisonment for that long.
36. So what I am going to do, to be proportionate to the actual offences committed, I am going to say that there should be a period of three months for each offence, to run consecutively. That is a period six months, or 26 weeks, but I will reduce that by two weeks for the time already served, I will consequently give a global sentence of 24 weeks for the two offences.
DJ Mackenzie Mr Byrne, nothing else is there, or is there?
Mr Byrne There is no application for costs by the claimant at this point.
DJ Mackenzie No, absolutely. Pretty pointless. All right, Ms Baker, I’m afraid that’s it. Do you understand I have sentenced you to 24 weeks in prison, running from today. You understand?
Ms Baker Excuse me (inaudible), is it okay if I move to Malvern?
DJ Mackenzie I can’t remember what your present injunctions deal with. I haven’t been focussing on …
Ms Baker (Inaudible).
DJ Mackenzie I haven’t looked at the previous, the whole totality of the injunction today. There was an exclusion from Malvern, wasn’t there?
Mr Byrne There is an exclusion. The map itself is in my papers, but she is excluded, I’m very grateful my housing officer has just handed me a copy. She is excluded from a large part of Malvern, just east of the train line, which runs between Malvern Link and Great Malvern Station itself. I can hand a copy of that to the court, if you don’t have one immediately to hand.
DJ Mackenzie I haven’t got it immediately, but …
Mr Byrne ‘Entering a part of Malvern which is edged in blue on the attached map, the exclusion area at any time, and the …’
DJ Mackenzie And that injunction runs till when?
Mr Byrne This injunction runs until midnight on the 2nd August 2018.
DJ Mackenzie Right, could you hand that to Ms Baker, that plan, if you would, please? Ms Baker, you are currently excluded from going within the area on that plan. Ms Baker?
Ms Baker (Inaudible).
DJ Mackenzie You’re currently excluded from that area. Is that the area that you want to go back to?
Ms Baker 46 Malvern Gardens.
DJ Mackenzie Well I don’t know off the top of my head whether that’s in that area or not.
Ms Baker No, it’s not.
DJ Mackenzie It’s not.
Ms Baker No.
DJ Mackenzie So you don’t, you’ve no desire to go back to that area?
Ms Baker No (inaudible).
DJ Mackenzie Well in that case, there’s nothing to stop you going to where you’re saying.
Ms Baker Thank you.
Mr Byrne I’m instructed that the above address mentioned by Ms Baker, and I will be correct if it’s wrong, is Fortis Housing Accommodation. The housing association would be seeking to prevent her from returning to the accommodation, for returning to any Fortis Housing accommodation, given the difficulties that have been experienced previously in this case. At the moment, the injunction itself holds with regards to the exclusion area, but I think it might be worth making that plain to the court now, given that the defendant’s asking whether or not she can return to that area in future. I think Fortis would be seeking to prevent that from happening, given the previous history of the case.
DJ Mackenzie Well, I’d be reluctant to summarily impose that now. I’ve gone as far as I can today without Ms Baker having any legal advice, and I think if you want to have a further injunction, reluctant that I am to put you to all the cost and inconvenience of doing yet more litigation, I don’t think I can do that on the hoof. So if you want further injunctive relief, you’ll have to apply for it. Otherwise, she’s entitled to go there, although, not to enter a Fortis property unless she’s got a tenancy or is properly invited. Yes, Ms Baker, you want to say something finally?
Ms Baker (Inaudible) I am allowed to go to my brother’s because (inaudible) housing in (inaudible) Malvern know that I was there.
DJ Mackenzie Right, you’ve been served with the injunction orders. I appreciate you have difficulty in reading and writing. Mr Copson can help you. Personnel in the prison will be able to help you as well. If you want to breach those injunctions, then you need to contact the claimant and ask them if they’ve got any objection in the first instance. If they haven’t got any objection, the injunction can be varied.
Ms Baker (Inaudible) because when I was (inaudible) they knew about it (inaudible).
DJ Mackenzie Well I don’t think you can take it for granted that they are happy with that. If you want to go somewhere, ask them specifically. And if it’s in breach of the injunction, and they are not happy to change it, then you shouldn’t go there. Unless you make an application to the court to vary the injunction, for which there’d have to be some good reason. All right? I think that concludes matters, thank you.
Mr Byrne Thank you, sir.
Court Clerk Court rise.