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 BOW COUNTY COURT
(HIS HONOUR JUDGE BRADBURY)

		Royal Courts of Justice Strand London, WC2 Tuesday, 19th November 2002

Tuesday, 19th November 2002

1. LORD JUSTICE TUCKEY: The defendant in these proceedings, Mr Richard Jones, appeals against an order made by His Honour Judge Bradbury in the Bow County Court on 13th November 2002 remanding him in custody until tomorrow, which he fixed as the first available date on which a contested application to commit him for breach of an injunction could be heard.
2. We have heard the application for permission to appeal, if that is needed, and the appeal itself at the same time as we are only talking about what should happen until tomorrow morning. There would, therefore, be no point in deciding, first, whether permission to appeal was needed and if so whether it should be granted in such circumstances.
3. The background is that since 1995 the appellant has been a tenant of the claimant council of a first floor flat at 44 McGregor Road, London E16. The next door flat, number 42, has been occupied by a number of women including Rebecca Smith. At the beginning of August this year the Council started proceedings for possession against the appellant on the basis that he was in arrears with his rent and had caused nuisance, annoyance or disturbance to the occupants of flat 42. An extensive history of abuse, threats and violence going back to early 2000 is relied on.
4. At the same time the Council obtained an injunction to restrain such conduct under the provisions of sections 152 and 153 of the Housing Act 1996. On 15th August 2002 the Council applied to commit the appellant for breach of this order as a result of his conduct on 12th August when Miss Smith and the senior law clerk dealing with this case on behalf of the Council, Patricia Regis, attended court.
5. The application to commit arising out of the events of 12th August came before His Honour Judge Hornby on 2nd September, when the applicant admitted the first of the allegations made against him. This was that as Ms Patricia Regis and Rebecca Smith entered the court building, the appellant, who had been standing at the entrance, stepped forward and shouted at them in a threatening manner. He asked Ms Regis if she worked for the Council because he wanted to talk to her and said, "How can you take the lies of that lying fucking bitch. No-one has come to ask me about this". The judge made no order on this admitted breach of the injunction. The more serious complaints resulting from the events of that day had occurred after the injunction had expired and so could not form the basis of the committal. Judge Hornby continued the injunction, which he backed with a power of arrest, until trial or further order. The trial is currently fixed for a date in December.
6. Rebecca Smith alleged that at about 10.45 pm on 12th November 2002, in breach of the continuing injunction, the appellant had knocked and banged the door to her flat and the letter box whilst shouting, "Are you in there, you cunt?". He then kicked the door and shouted that she was a "grassing cunt" and that he was going to kill her. The police were called.
7. The appellant was arrested and brought before Judge Bradbury the following day, as the statute requires. He was represented by counsel, who said that the appellant denied the allegation in its entirety. The judge gave directions for the hearing tomorrow at the Central London County Court. He then had to decide what to do with the appellant in the meantime. Section 155 and schedule 15 to the 1996 Act gave him power to remand the appellant in custody for up to eight days or to remand him on bail.
8. The appellant's counsel asked for bail and said that the appellant would submit to any conditions the court decided to impose, although no specific conditions were offered. The judge, in a short judgment of which we do not have a transcript but we have counsel's note, he described the appellant as a volatile man. He referred to the serious nature of the allegations made, in particular the threat to kill, and to the fact that the appellant had admitted an earlier breach to which I have already referred. His reasons for refusing bail were, as the note records: "The victim in this matter lives adjacent to you and there are plain difficulties when the Defendant and complainant live so close together, particularly when one allegation has been admitted".
9. Although the judge does not address the matter in terms of the Bail Act, as he would have to if he was dealing with a criminal case, it is clear that what concerned the judge was, firstly, the seriousness of the allegation which was being made against the appellant, and, secondly, his concern to keep the peace. In Bail Act terms he obviously perceived that there was a risk that the appellant would repeat the conduct complained of if he were not remanded in custody.
10. The appellant is represented today by Mr Evans, who did not appear before the judge. His submissions to us are that the judge failed to give proper consideration to whether he should remand the appellant in custody or on bail, and if so whether conditions could be imposed which would meet his anxiety to prevent further trouble. Had he addressed the question of conditions properly, he could have discovered that the appellant was prepared to submit to the conditions which are now offered, which are that he would live at an address in Barking and would give further promises not to contact Rebecca Smith and that he would not go to McGregor Road.
11. Mr Evans submitted that the appellant's only recourse was to come to this court because the Housing Act contains no specific provisions which enable someone in the appellant's position to appeal or re-apply for bail. We should review the judge's order because it is wrong for the reasons I have summarised, but preferably re-hear the matter and conclude that the conditions now on offer are sufficient to meet the concerns the judge had when refusing bail.
12. Miss Hawkes, on behalf of the Council, submits that there is power in the county court, or the court making the order under section 155, to reconsider bail if there is a change of circumstances, and so we should confine our role on appeal in this case to one of review, and that if one reviews the judge's decision with the provisions of CPR 52(3) in mind, the judge's decision was obviously not wrong. It was a decision made in the exercise of his discretion. Nor was it unjust as a result of any serious procedural or other irregularity. The appeal should therefore be dismissed.
13. I accept Miss Hawkes' submissions. It seems to me that in cases like this the court must have power to consider its decisions to remand in custody or to grant bail, at least if there is a change of circumstances. That is the power one would expect the court to have, and I think it is confirmed (perhaps not very clearly) by the practice direction made under the Housing Act 1996, which is CCR PD 49(6B), paragraph 2 of which refers, firstly, to an application for bail made by a person arrested under an order of the kind which we have in this case, and, secondly, in paragraph 2.2 to an application notice seeking bail which (although only dealing with the form of the notice) says at subparagraph 5:

"the grounds on which the application is made and, where previous application has been refused, full details of any change in circumstances which has occurred since that refusal."

This makes it clear that the practice direction contemplates an application to the court, which has the statutory power under section 155 and schedule 15, to reconsider its decision if there has been a change of circumstances. It is not therefore necessary for someone who is dissatisfied with such an order to come to the Court of Appeal in circumstances such as these where, in effect, what the appellant is saying is that as he is now offering conditions which will prevent further trouble the circumstances have changed and bail should be granted.

14. For this reason I think we should confine our task today to one of review. Reviewing the judge's decision, it seems to me that he was fully alive to the fact that he had the power to grant bail, and since conditions had been mentioned to him as a possibility by the appellant's counsel, he must have been alive to the fact that he could have imposed conditions if he had thought that this was appropriate. He gave reasons for refusing bail which, in the circumstances, seem to me to be perfectly cogent. The decision was at the end of the day one for discretion and I could not possibly characterise what he did as being plainly wrong; nor can it be said that there was any serious procedural or other irregularity in the proceedings.
15. For those reasons I would dismiss this application and appeal.
16. LORD JUSTICE MUMMERY: I agree. The appeal is dismissed and the application as well.
(Application and appeal dismissed with costs. Detailed assessment of the appellant's costs)