England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT COUNTY COURT
(His Honour Judge Thompson QC)

		Royal Courts of Justice Strand London WC2 Friday, 26th July 2002

Friday, 26th July 2002

1. LORD JUSTICE PETER GIBSON: This is an appeal by Andrew Neil Connolly from part of the order made by His Honour Judge Thompson QC on 25th June of this year in the Newport (Isle of Wight) County Court. By that part Mr Connolly was committed to prison for six months for breach of an injunction made against him on 28th February 2002. The judge also gave a concurrent sentence of one month's imprisonment for contempt in the face of the court. There is no appeal from that part of the order.
2. Mr Connolly and his then partner, Emma Donnellan, were tenants at 16 Anchorage Way, East Cowes in the Isle of Wight, the landlord being the Medina Housing Association Ltd ("Medina"). Complaints were made against Mr Connolly and Miss Donnellan by other residents of Anchorage Way because of their anti-social behaviour. One complainant was Mr Divinney of 15 Anchorage Way. Medina on 18th December 2001 brought proceedings against Mr Connolly and Miss Donnellan for possession and an injunction against entering Armitage Way, assaulting or threatening or otherwise behaving in such a manner as to cause a nuisance or annoyance to residents of Anchorage Way. Medina obtained an interim injunction from Portsmouth County Court until trial restraining them from:

"(1) Assaulting or threatening the other residents of Anchorage Way, East Cowes, Isle of Wight or any other person residing, visiting or otherwise engaging in a lawful activity in the locality of 16 Anchorage Way.

(2) Behaving in such a manner as to cause a nuisance or annoyance to the residents of Anchorage Way or persons residing, visiting or otherwise engaging in a lawful activity in any the form within 16 Anchorage Way so as to be audible inside any other residential property in the locality."

3. A power of arrest until 21st March 2002 in relation to Mr Connolly was added to the order pursuant to section 153 of the Housing Act 1996.
4. Mr Connolly was arrested for an alleged breach of the injunction. On 4th February the court heard evidence that he had disobeyed paragraph (2) of the order of 21st December 2001. The court ordered that Mr Connolly be released on bail on terms that he complied with a further injunction in like terms to the order of 21st December 2001, that injunction to remain in force until the hearing on 7th March of a committal application to be made by Medina. On 7th February an application notice for the committal of Mr Connolly was filed. Among the acts said to have been committed by Mr Connolly was harassment and intimidation, constituting nuisance and annoyance to the residents of 15 Anchorage Way, including staring at Mr Divinney on two occasions. Evidence was obtained from close-circuit television, and that was filed. The evidence was of incidents which occurred at Anchorage Way on 2nd and 3rd February.
5. Thereafter further incidents were recorded on tape. This included on 22nd February threats by Mr Connolly to kill Mr Divinney. Evidence of this was contained a witness statement of Mr McDonald, Medina's head of housing. On 22nd February the court vacated the hearing on 7th March and directed that Mr Connolly be remanded in custody until a hearing on 28th February. On 22nd February Medina filed a further application for the committal of Mr Connolly. That was done pursuant to a direction of the court. Medina alleged breaches of both paragraphs of the injunction of 4th February.
6. On 28th February the committal hearing took place in Portsmouth County Court before His Honour Judge Davis. Mr Connolly had counsel appearing for him. A further injunction in the terms of paragraphs (1) and (2) of the previous injunctions plus a third paragraph, to which Mr Connolly consented, prohibiting Mr Connolly from entering Anchorage Way and another road until 28th August 2002, was made. The injunction was expressed to remain in force "until 24 June 2002" unless previously revoked. A power of arrest was attached to expire "on 24 June 2002". It is not in dispute that the date of 24th June was chosen because that was the date fixed for the hearing of Medina's claim for possession and a permanent injunction. Mr Connolly admitted that he was in breach of the injunctions of 21st December 2001 and 4th February 2002. The judge sentenced Mr Connolly to 42 days' imprisonment.
7. On Monday 24th June the trial of Medina's proceedings for possession and a permanent injunction commenced. Mr Connolly chose not to be present or represented, but during the lunch adjournment an incident occurred which the judge was to describe the next day in his ruling in this way:

"... during the luncheon adjournment after Mr Divinney [sic], a key witness for the claimants, had given evidence, he, Mr Devinney together with his partner, who live at 15 Anchorage Way, went off to have some refreshment with Mr McDonald, the housing officer and also the solicitor who is acting for the claimant. By then, as I have said, Mr Devinney's evidence was complete, and Miss Young, Mr Devinney's partner, was not a witness who was giving evidence. As they returned to the court between about ten and five to two, what happened was that Mr Connolly was seen to be advancing in a group of people. Then he speeded up and in the words of Mr McDonald, `made a beeline back towards Mr Devinney and Mr McDonald. When he approached them, close up to them, he stood in a menacing fashion with his arms folded and staring at Mr Devinney. Mr Devinney's partner, Miss Young, was great intimidated, as indeed was Mr Devinney. Mr Devinney pushed his partner through the door of the court and followed smartly afterwards and heard nothing said. Mr McDonald was outside and what he heard from Mr Connolly was the words, `I'm bad and I'm back'. Those words are admitted by Mr Connolly as having been said. Then, according to Mr McDonald, Mr Connolly said, `Snob' twice. That is disputed by Mr Connolly, but that is not particularly perhaps offensive. After that, Mr Connolly, according to Mr McDonald, said, `I'm going for a fucking drink now' and walked off."

8. Mr Connolly was arrested by the police. He was brought before Judge Thompson QC that afternoon. A solicitor, Mr Thorn, who had acted for Mr Connolly previously in the dispute with Medina, was instructed by Mr Connolly to act for him. He had a brief opportunity to speak with Mr Connolly before he was brought into court. Counsel for Medina, Mr Glen, who also appears before us on this appeal, invited the judge to the hear evidence on what had happened to decide what to do about giving directions for a further hearing. The judge indicated that he would deal with the alleged contempt. He said this:

"I think I should say to Mr Thorn that it is a very difficult situation for you to deal with at such short notice and without really knowing very much about what the evidence will contain. What I think you may wish to do is to reserve cross-examination, rather than cross-examine the witness, unless of course you feel you can deal with anything they say now. You may prefer to reserve cross-examination and I will adjourn the matter until, say, Wednesday or Thursday, in other words beyond tomorrow so that you have adequate opportunity to instruct counsel if you feel it appropriate, or deal with it yourself if you are happy to deal with it yourself."

9. A little later the judge said to Mr Thorn:

"I appreciate that you have come into this matter at very short notice. It may be better if you hear what is being alleged against your client before you decide to take any particular course. It is up to you, of course, if you want to make representations, but you may feel it better to reserve your position until you have heard what has been said and had an opportunity to take instructions on it."

10. Mr Thorn indicated that he would accept the judge's guidance. The judge then said:

"Also, you do not know exactly what is going to be said, and nor does he. So, you cannot really prepare a cross-examination when you do not know what is going to come.

MR THORN: Quite, your Honour. I can expect what is to come.

JUDGE THOMPSON: Yes, but what I mean is you do not have a witness statement or anything of that nature, so I think that it is much better if you reserve your position unless, as I said, of course, you want to do otherwise. It is up to you; you are the advocate. I am very happy for you to reserve any cross-examination, and you are in no way prejudiced by doing so.

MR THORN: I would prefer, your Honour, to reserve cross-examination."

11. After discussion about the date when the hearing would resume, Mr Divinney and Mr McDonald were examined in turn. Cross-examination was reserved. Mr Glen asked the judge if he considered it appropriate for the matter to be dealt with as a potential contempt of court. The judge said he did. There was then further discussion as to the resumed hearing date. Mr Thorn said:

"Your Honour, I am mindful of the fact that Mr Connolly will be in a police station later on. I will have adequate time then to speak to him and take instructions. I would prefer more time, to be absolutely honest, your Honour, but if that is the way in which the court would prefer to deal with matters and it makes it easier for all parties, I would like to quickly speak to Mr Connolly to see if he would object to that.

JUDGE THOMPSON: Yes. It is probably better if we can dispose of it tomorrow, I would have thought, because it avoids a lot of problems.

MR THORN: It does, your Honour. Perhaps if it is listed in the afternoon at, say, two clock."

12. Then, after further discussion, the judge said this:

"Mr Thorn, I am going to say that I will deal with this tomorrow after the conclusion of the other case, but if you find that you have had inadequate time to take instructions, obviously we will simply have to find another day.

MR GLEN: Given my suggested time estimate - it is a pretty short issue - I wonder whether it would help my friend if it was listed not before twelve?

JUDGE THOMPSON: Yes.

MR THORN: Thank you, your Honour.

JUDGE THOMPSON: Very well. so, we shall say not before twelve tomorrow but, Mr Thorn, if you are in difficulties, of course, in dealing with it with such short notice, then I shall obviously hear what you have to say."

13. The following day the possession proceedings were completed and the possession order and a permanent injunction granted. At about noon the contempt proceedings resumed. Mr Glen drew the judge's attention to the fact that the court had jurisdiction to find a breach of paragraphs (1) and (2) of the injunction only in relation to Mr Divinney as a resident of Anchorage Way. Mr Glen also drew attention to the injunction being worded to continue until 24th June. Mr Glen also submitted to the judge that the court had power under section 118 of the County Courts Act 1984 to imprison for up to one month if a contempt in the face of the court was found, and it was that to which Mr Divinney's and Mr McDonald's evidence was relevant. Mr Glen also referred to the fact that the maximum term of imprisonment for breach of an injunction was two years.
14. Mr Divinney and Mr McDonald were then in turn cross-examined by Mr Thorn. Mr Thorn was asked if he wanted to call evidence, and Mr Connolly was called. He gave his evidence in chief and was cross-examined, and the judge asked Mr Connolly about a breach first of paragraph (1) and, second, of paragraph (2) of the injunction. When Mr Connolly's evidence was completed, Mr Thorn was asked if he had any other witness that he wanted call. He said that he did not.
15. Mr Thorn then addressed the judge on the facts, saying that it was not contempt for Mr Connolly to have maintained eye contact for a bit longer than he perhaps should, and Mr Thorn submitted that without intention there could be no contempt. He stressed that Mr Connolly had apologised. The judge then gave his ruling as to what he called an application to commit Mr Connolly for contempt of court and for breaches of the injunctions. I emphasise the fact that the judge used the word "breaches", in the plural, because of an argument addressed to us on that point. The judge set out paragraphs (1) and (2) of the injunction and recounted the facts which I have recited from his judgment. The judge said that he was satisfied that that is what happened and that Mr Connolly did not dispute it apart from the use of the word "snob". The judge said that he was satisfied that there were those breaches of the injunction and that it was a contempt of court.
16. The judge invited Mr Thorn to address him on sentence, which Mr Thorn did. The judge then gave his ruling. He said to Mr Connolly:

"I take a very serious view of this conduct. Back in December last you uttered threats to Mr Divinney when you said, `If we get kicked out of here, we know who to bring the revenge down on. There's plenty of us, mate'. Then, when you were arrested on 22 February this year you said, `Divinney, I'm going to kill you, you little mother fucker. I'm going to stab you'. This was after an occasion when you had brandished a meat cleaver in his direction. Then, what happened yesterday when Mr Divinney was at court, having given evidence in the morning, you came along as he was returning to court with your arms folded and in a menacing way approached him and stared at him, causing him great distress and causing his partner who was with him considerable distress.

I have already dealt with the way in which Mr Divinney and his partner have suffered as a consequence of the behaviour of yourself and your partner during the short period when you have lived next door to one another. I regard this sort of conduct as very serious indeed. There was an injunction, as you know, restraining you, and in breach of that injunction, nevertheless you behaved in this intimidating way. I regard that sort of conduct as not just a threat to Mr Divinney but a threat to the administration of justice itself.

Witnesses are reluctant to come to court to give evidence because of the fear of revenge and threats. Mr Divinney had the courage to come and give evidence. There are two other witnesses who also had the courage to come and give evidence but there were other witnesses who declined to be identified and remained anonymous because they were too intimidated by you. The fact that you came along to court yesterday and behaved in this menacing and threatening manner I believe is the sort of conduct which the court has to stamp on because if the court does not do so, in future other witnesses will be reluctant to come to court. I think that this was a very serious breach of the injunction on your part, and the sentence which I pass in your case is one of six months' imprisonment. I also pass one month concurrent for the contempt of court insofar as this was conduct involving wilfully insulting the witness on his return to court at a time when he was giving evidence."

17. On this appeal we have had the benefit of admirably skilful arguments from each of Mr Counsell for Mr Connolly and Mr Glen for Medina.
18. Three points are taken by Mr Counsell:

(1)The judge failed to follow the correct procedures as to the information which is required to be given to the alleged contemnor under the rules and Practice Direction.

(2)There was no breach of the injunction because it expired before the acts alleged to constitute the breaches occurred.

(3)The sentence was manifestly excessive.

19. I shall consider these in turn.

(1) Procedure

20. Order 29, rule 1 of the County Court Rules continues to apply to county court proceedings for committal (see Schedule 2 to the Civil Procedure Rules). The relevant provisions are these.
21. Rule 1(4) provides that if an order requiring a person to abstain from doing an act fails to obey it, an application notice seeking the committal for contempt of court of that person shall be served on him personally subject to subsection (7).
22. By rule 1(4)(a), so far as material, the application notice shall:

"(a)identify the provisions of the injunction ... which it is alleged have been disobeyed...;

(b) list the ways in which it is alleged that the injunction has been disobeyed...;

(c)be supported by an affidavit stating the grounds on which the application is made,

and unless service is dispensed with under paragraph (7), a copy of the affidavit shall be served with the ... application notice."

23. By rule 1(7) the court may dispense with service of an application notice if the court thinks it just to do so.
24. The Practice Direction supplemental to Order 52 of the Rules of the Supreme Court applies to any application for an order for committal of a person to prison for contempt of court, and Part II of the Practice Direction makes additional provision where the committal application relates to a contempt in the face of the court (paragraph 1.1). Apart from containing provisions which mirror those in Order 29.1 to which I have referred, the Practice Direction provides in paragraph 3.1 that written evidence in support of a committal application must be given by affidavit. By paragraph 4.1 an applicant for a committal order must, when lodging the application notice with the court, obtain from the court a date for the hearing of the committal application and by paragraph 4.2, unless the court otherwise directs, that hearing date shall be not less than 14 days after service of the application notice.
25. Whilst I am referring to the Practice Direction, it is convenient to mention two further provisions. First, by paragraph 10:

"The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."

26. Second, Part II of the Practice Direction, relating to contempt in the face of the court, provides for a different procedure. Thus, no application notice is required. It is for the judge to inform the respondent of all actions of the respondent which have given rise to the committal application. The judge should allow the respondent time to reflect on what has occurred. I shall not go into the details of Part II, as no complaint is made about the procedure adopted or order made in respect of the contempt in the face of the court.
27. Mr Counsell submits that in relation to the application for committal for breach of the injunction, the prescribed procedures were not followed in that there was no service of an application notice and no order dispensing with its service, there was no written evidence in support of the application, and the proceedings were commenced without it being made clear what the allegations against Mr Connolly were. He says, on instructions, that it was not clear to Mr Thorn on 24th June that Mr Connolly faced any proceedings for breach of the injunction and that it was only on 25th June that this became apparent when Mr Glen started addressing the court. Mr Counsell says that the procedure was fundamentally flawed, it not having been made clear what was alleged against Mr Connolly, nor was Mr Connolly given the time to reflect on the allegations. In particular, there was no 14-day interval before the hearing. He suggests that had Mr Connolly had that time, a barrister might have been instructed, as had happened at the earlier hearing of the application to commit when Mr Connolly was imprisoned, and witnesses in addition to Mr Connolly might have been called. A further but quite different complaint is made that the judge, by referring in his ruling to "breaches of the injunction", may have misunderstood the true position. Of Medina's two witnesses only Mr Divinney was a resident of Anchorage Way, so no conduct directed at Mr McDonald, who was not a resident, could have been relevant to any question of breach of an injunction. Mr Counsell suggested that the judge may have treated Mr Connolly's words to Mr McDonald, "I'm bad and I'm back", as being a breach of the injunction.
28. Mr Glen submits that it is important to distinguish between form and substance. He did not concede that the judge failed to adopt the right procedures. Mr Glen pointed out that what had occurred was a simple incident (the facts of which were not disputed), Mr Connolly's conduct constituting both a contempt in the face of the court and a breach of the injunction. He submits that paragraph 10 of the Practice Direction shows that the court can mould the procedure to fit the situation, provided that no injustice to the alleged contemnor results.
29. He drew our attention to the modern approach to applications to commit indicated in two decisions of this court: M v P [1992] 4 All ER 83 and Nicholls v Nicholls [1997] 1 WLR 314, in each of which attention was drawn to the need to pose the question whether the contemnor had suffered any injustice by any failure to comply with the prescribed procedures. In Nicholls Lord Woolf MR, with whom Auld LJ and Ward LJ agreed, said at page 326 at B:

"Today it is no longer appropriate to regard an order for committal as being no more than a form of execution available to another party against an alleged contemnor. The court itself has a very substantial interest in seeing that its orders are upheld. If committal orders are to be set aside on purely technical grounds which have nothing to do with the justice of the case, then this has the effect of undermining the system of justice and the credibility of the court orders. While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor, if there is non-compliance with the requirements which does not prejudice the contemnor, to set aside the order purely on the grounds of technicality is contrary to the interests of justice. As long as the order made by the judge was a valid order, the approach of this court will be to uphold the order in the absence of any prejudice or injustice to the contemnor as a consequence of doing so."

30. Lord Woolf at page 327 gave guidance for future cases in these terms, so far as relevant:

"(1) As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with. ...

(2) As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except in so far as the interests of justice require this to be done.

(3) Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. ...

(4) When considering whether to set aside the order, the court should have regard to the interests of any other party and the need to uphold the reputation of the justice system.

(5) If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there are circumstances which indicate that it would not be just to do so."

31. Mr Glen argues that the way the judge handled the case avoided any injustice. By hearing the evidence of Mr Divinney and Mr McDonald at the outset, Mr Connolly and Mr Thorn knew precisely what the factual allegations against Mr Connolly were, and the judge was at pains to ensure that Mr Thorn did not have to cross-examine or respond to those allegations that day and had time to instruct counsel, if Mr Thorn wished, and to take proper instructions from Mr Connolly. At no time, he points out, did Mr Thorn object to the procedure indicated by the judge, or ask for more time, or suggest there were other witnesses whom he might wish to call. Mr Glen submits that even if Mr Thorn did not understand until the second day that the allegations were both of a contempt in the face of the court and of a breach of the injunction, it had not been shown that that made any difference. It did not alter the nature of the relevant conduct. The only significance of the more serious charge went to the sentence, and Mr Thorn was allowed to address the judge as fully as he wanted. Mr Thorn had made no application, when he knew that the allegation of a breach of the injunction was being considered, that he needed more time and could not otherwise do justice to his client's case. Accordingly, Mr Glen submits, any defect was in form rather than substantial and occasioned no injustice to Mr Connolly.
32. Neither counsel has addressed us on the European Convention on Human Rights, and no relevant authority on the Convention has been drawn to our attention.
33. For my part, I think it clear that the procedures adopted by the judge were in breach of Order 29 rule 1 and the Practice Direction and that there was an irregularity in the procedure. But in accordance with paragraph 10 of the Practice Direction and the authorities to which I have referred, that will not be fatal to the validity of the order made by the judge unless, as a result of that irregularity, Mr Connolly did not have a fair trial or was prejudiced in some material way. In the particular circumstances of this case, I regard Mr Connolly as having had a fair trial and as not having been prejudiced. The case was a very simple and straightforward one on the facts, which were not in dispute. Mr Connolly admitted that when he saw Mr Divinney he became angry and approached him, and when he was close he stared at Mr Divinney out of anger and frustration and that in doing so he could have caused Mr Divinney some discomfort.
34. As Cresswell J pointed out in the course of the argument, it would have been absurd for the judge not to deal with both the contempt in the face of the court and the breach of the injunction at one and the same time. There were obvious advantages in the evidence being heard promptly. If Mr Thorn had been in any difficulty in dealing with the case because of the timetable laid down, he could have said so; and the judge indicated that he would have allowed more time for Mr Thorn. It is significant that Mr Thorn, knowing that the allegations against Mr Connolly included an allegation of breaches of the injunction, made no objection and gave no indication that he needed more time because of the more serious nature of the allegation. Mr Thorn knew the background of the case, having previously been instructed by Mr Connolly in this matter. He had even seen the video tapes. It was entirely reasonable that he should deal with so simple a case himself there and then.
35. Mr Counsell does not say that the case would have been conducted differently if more time had been allowed. He speculates as to what differences there might have been if the prescribed procedures had been followed, but there is nothing to support such conjecture. For example, his suggestion that other witnesses might have been called is not backed by anything that Mr Thorn said to the judge, and Mr Thorn was given the opportunity to call what witnesses he thought appropriate. In any event, I cannot see how further evidence could have assisted Mr Connolly, given the undisputed facts. The judge seems to me to have gone to some trouble, entirely properly if I may say so, to ensure that the trial was as fair as possible to Mr Connolly and that Mr Thorn had every opportunity to protect Mr Connolly's interests.
36. I have no hesitation in rejecting the suggestion that the judge was wrong to refer to "breaches" of the injunction, in the plural, or that he misunderstood the consequences of what was said by Mr Connolly to Mr McDonald. Mr Glen at the resumed hearing on the second day specifically drew the judge's attention to the different position in respect of Mr McDonald who was not a resident of Anchorage Way. From the judge's own questioning of Mr Connolly, it is apparent that he was minded to think that not only was there a breach of paragraph (1) but also of paragraph (2) of the injunction.
37. I would not encourage judges to take the unusual course the judge took in this case. It is always better to abide by the rules. Not to do so courts the risk of unfairness which the rules are designed to avoid. Further, it would have been better at the outset of the contempt proceedings on 24th June for the judge to have made clear, or insisted that Medina made clear, what were the charges against Mr Connolly. Nevertheless, I am satisfied that in the particular circumstances of this case the procedural defects did not cause injustice to Mr Connolly and that he received a fair trial.

(2) The date of termination of the injunction

38. Mr Counsell submits that the interim injunction of 28th February 2002, being expressed to be in force "until 24 June 2002", expired at midnight on 23rd June, alternatively expired at the commencement of the trial on 24th June, and so was not in operation at lunch-time that day, some hours after the trial commenced. Mr Connolly first relied on rule 2.9(1) of the CPR, but that rule is not apt to apply to an injunction against something being done as distinct from an order requiring compliance by a particular time. He says that a penal order should be construed in the most favourable way to the person at risk of being penalised.
39. Mr Glen drew our attention to what is said in Halsbury's Laws Volume 45(2) Fourth Edition (Reissue) 1999 paragraph 228 to be the general rule as to days included or excluded. Thus, it is pointed out that the expression "until such a day" is equivocal, and regard must be had to the context in which the words are used. But the general rule is stated to include the specified day (see Isaacs v The Royal Insurance Company (1870) LR 5 Exchequer Cases 296 at 300 per Chief Baron Kelly).
40. In context, given that 24th June was the date of the trial, when the judge might be expected to decide whether to make the injunction permanent, it is to my mind clear that the intention must have been to include and not to exclude the 24th June, rather than to have a hiatus between the interim injunction and any permanent injunction that was granted. We have been shown no authority to suggest that, where the wording to be construed is until a specified date, that can be construed as other than including or excluding the whole day. There is nothing in the wording of the order to suggest that a particular moment or event in the course of the day is the termination point. I would construe the words of the order by applying the general rule so that the order had effect for the whole of the 24th June.

(3) Excessive sentence

41. Mr Counsell submits that the sentence was manifestly excessive. Thereby he recognises that unless this court can go that far, it will not tinker with the sentence. He says that having regard to what Mr Connolly did on 24th June, that is to say merely to stare at Mr Divinney, although he had the time and opportunity to do much more, the sentence was far too long. Again he relies on the possibility that the judge was confused over the breaches of the injunction. He also points to the fact that Mr Connolly apologised for what he had done.
42. I am not able to accept these submissions. The judge was entitled to consider the appropriate sentence for the breaches of the injunction in the light of the previous conduct of Mr Connolly, and that included his previous breaches which had caused him to be sentenced for 42 days only four months earlier. The judge was entitled to treat the continuing intimidatory conduct by Mr Connolly on 24th June at the door of the court as being very serious. I do not accept that the judge was confused over the breaches of the injunction, for the reasons already given. The judge was fully aware of the apology which Mr Connolly had given. In my judgment the sentence imposed for breaches of the injunction was within the permissible range of sentences and was not manifestly excessive.
43. For these reasons, therefore, I would dismiss this appeal.
44. LADY JUSTICE ARDEN: I agree with the judgment of Peter Gibson LJ and with the order which he proposes. I desire to add an observation on one point only.
45. This case was ably argued by both counsel, and Mr James Counsell for the appellant argued on the form of the order that it was ambiguous and could should be construed in favour of Mr Connolly. But in the course of his cross-examination the judge asked Mr Connolly whether he knew that there was an injunction in existence, and Mr Connolly answered "Yes". The judge carefully went through the terms of the order, and it was clear that Mr Connolly knew the terms of both parts of the order and, in addition, that Mr Divinney as a resident of Anchorage Way was a person protected by the terms of the order. Mr Connolly's response was to the effect that he was not intending to threaten or to cause annoyance, that is that his conduct was unintentional.
46. To my mind it was quite clear to Mr Connolly that there was an injunction in force, and thus I would not have been minded to accept this further submission of Mr Counsell that there was any doubt about the meaning of the order.
47. For those reasons and the reasons which my Lord has given, I would dismiss this appeal.
48. MR JUSTICE CRESSWELL: I also agree with the judgment of my Lord Peter Gibson LJ and the additional observations of my Lady Arden LJ.
49. As to the construction of the words "until 24th June" in the order in question, it seems to me that my Lord's construction corresponds with the relevant terms of the example of an injunction provided at 25 PD (see Civil Procedure Volume I 25 PD.14).
50. I too agree that this appeal should be dismissed.
Order: Appeal dismissed with costs, not to be enforced without the permission of the Court. Pubic funding assessment of the Appellant's costs.