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 LEEDS COUNTY COURT
(HIS HONOUR JUDGE KAMIL)

		Royal Courts of Justice Strand London, WC2A 2LL
		5 July 2004

Monday, 5 July 2004

1. LORD JUSTICE THORPE: Lord Justice Wall will give the first judgment.
2. LORD JUSTICE WALL: This is an appeal by Mr Donald Clarke against findings made by His Honour Judge Kamil sitting in the Leeds County Court on 9 June 2004 that Mr Clarke had breached an order made in the same court by District Judge Spencer on 13 May 2004 which forbade Mr Clarke from intimidating, harassing or pestering his estranged wife, Sandra Clarke, or their three children. Although the judge found that Mr Clarke was in contempt of court, he did not proceed to sentence on 9 June - rather, he remanded Mr Clarke in custody and ordered a psychiatric report on him. That report was due, we are told, to have been prepared by 28 June. Unfortunately it was not, with the result, as we were told this morning, that the matter has been further adjourned to Thursday of next week when the report will be ready and, subject to the decision of this court, Mr Clarke will be dealt with. No complaint has been made about that part of the judge's order. However, because the judge adjourned sentence pending the receipt of that report, the question arose as to whether or not Mr Clarke needed permission to appeal. On 29 June Scott Baker LJ granted permission on the papers with a direction that the appeal be expedited. Hence it comes before us this morning.
3. The judge made three findings against the appellant. The first was that on Sunday 23 May 2004 he harassed and intimidated Sandra Clarke and her three children by following them and driving slowly by them. Secondly, that on 24 May he harassed and intimidated Sandra Clarke by driving slowly past a property at 63 Grove Lea Walk, which is the address at which Mrs C was staying with her sister. Thirdly, that on Friday 28 May he harassed and intimidated her and her three children by parking outside 63 Grove Lea Walk and taking photographs.
4. The order which the judge found Mr Clarke had breached was made on 13 May 2004. It was an order made without notice to Mr Clarke, but the judge was satisfied that he had been served with it, and no point on service or notice is taken in this appeal.
5. The order of 13 May 2004 is essentially in the terms which I have already indicated, save that paragraph 1 forbids Mr Clarke from using or threatening violence against Mrs Clarke, and that he must not instruct, encourage or in any way suggest that any other person should do so. The second paragraph forbids him to intimidate, harass or pester her, and that he must not instruct, encourage or in any way suggest that any other person should do so. He was also ordered and forbidden to use or threaten violence against the relevant children. The order was given a return date.
6. The case has a very considerable history, part of which is set out in a chronology in our papers. This shows a sorry history of a series of applications to the court for injunctive relief and a consequential series of hearings of committal proceedings against Mr Clarke for breaches of court orders, resulting in the imposition on at least three occasions of terms of imprisonment against him for disobedience to court orders. It is, moreover, apparent from the documentation that, in relation to the events with which we are concerned, Mrs Clarke and the children had been living away from Pontefract in a refuge for about a year, and the events we are concerned with occurred very shortly after she had returned to the Pontefract area on what appears to have been urgent, but otherwise unspecified, family business.
7. Having referred briefly to that history, the judge directed himself appropriately as to the burden and standard of proof, and, having warned himself against the danger of speculation, he considered each of the incidents involved.
8. In relation to the first of them, on 24 May, Mrs Clarke's case is that she had been visiting her mother in the company of the children. Her sister, Pauline Evans, was also present. Her mother lives in the same road as Mr Clarke, albeit on the opposite side of the road and about 100 yards away. Mrs Clarke said she had earlier seen Mr Clarke in the front garden of his house. When she and the children left she was anxious not to let him see her or them, so she sent her sister out to make sure the coast was clear. Believing that it was, she set off, making an arrangement with her sister to remain in contact by mobile phone in order to ensure that she got home safely. However, she says that Mr Clarke approached her and the children from behind in his car, pulled over to the right-hand side of the road (she was walking on the right-hand kerb). The driver's window was down. She said he drove very slowly alongside her, staring at her. She felt harassed and frightened. Mr Clarke then drove off. It is apparent that this particular incident was not witnessed by anyone else, and in particular not witnessed by Pauline Evans.
9. The judge then records Mr Clarke's version of the incident:

"Of course Mr Clarke said he didn't know that she'd been visiting her mother's. The first that he knew about it was when he decided that they had run out of milk, he having been working in the garden all day, and decided to go with his girlfriend to go and get the milk. So he went to the gate, he opened the gate and as he was opening the gate he saw, as he looked down towards the mother's home, his ex-wife leaving with what appeared to be his children and a small dog. He then went back into the house, collected his money, got the car keys, got in the car, and then he decided that, notwithstanding the fact that he knew that she was in the vicinity, he was going to leave the property at that particular moment. He decided he was going to choose a different route from the one he normally goes on, which wouldn't take him past the mother's house, but would still take him to the shops, by a longer route, and then, lo and behold, he said, he was quite astounded when he was driving along to suddenly see them about 50 or 100 yards in front of him. Of course he said that it wasn't until that point that he realised who they were. He continued on his way instead of pausing or going back, having regard to the past problems that he knew he'd had, and the fact that he certainly at the very least knew that there were injunction proceedings in the offing. He never paused, or slowed or crossed over the road in any way but just carried on and went along. 'The only thing that', he said that, 'I did as I'd got the window down was I did look across at them because I wasn't at all sure that one of the children was in fact my daughter, because she seemed to be rather larger than he remembered her as being'."

10. As to the second incident, on 24 May, the judge records the conflicting versions in this way:

"Then on the following day, the 24th of May, it is alleged by Mrs Clarke that she was at home at the sister's when she was looking out of the window and she saw Mr Clarke drive very slowly past that address. There was absolutely no need for him to be in that street and because he was driving slowly she felt well and truly intimidated and harassed because she thought there was only one reason why he could possibly be no that street. He, she says in her statement, which was never challenged, was driving a Scimitar motor vehicle and indeed the sister, who gave a [written] statement and who also gave live evidence, in her written statement says that she spotted him in the Scimitar and she actually made contact with her sister on the phone because she was concerned for her and for her safety, so both of those witnesses well and truly put him in that street in that car on that day.

Mr Clarke said, well, 'I do have a Scimitar', as he gave live evidence to that effect. 'The Peugeot car which I may very well have been driving on the 28th of May does in fact belong to my mother but I drive that motor vehicle because I take my mother around and she's infirm, she can't drive it, so I use that motor vehicle, but I do have a Scimitar. I have had it for many years and that's my car', is what he says. 'The Peugeot isn't even registered in my name. ... I don't even know the correct number of it. I am only able to give some of the letters and digits'."

That is the judge's assessment of the second incident.

11. The third incident is alleged to have taken place on 28 May. The allegation was that Mr Clarke parked outside Miss Evans' house and used a camera to take photographs. As to this incident, the judge described the rival versions as follows:

"Then on the 28th of May, the final incident, the only perhaps point of agreement between the parties is that Mr Clarke says that, 'Yes, I accept the fact that I was in the street on that day but I have a perfectly legitimate reason for being in the street in the vicinity of the sister's flat on that day I'd left the house, I was going out, and then I realised that I hadn't got my phone with me, so instead of having to do a U turn in a busy main road such as Church Walk I decided to do what I've done on occasions in the past and in effect use Grove Lea Walk ... as the U turn to take me safely round and back the way I had come and then back to my house and that's all I did on that occasion. No question of me driving very slowly down the road. I was - you can't drive fast because there are - fairly narrow road, as can be seen from the photos and there are usually cars parked along there. Any parking places that there may be', and he concedes the fact that there are three parking places, he said, 'aren't big enough anyway to do a complete sweep round with the car so it's just as safe and easy to carry on down the street and go out through the other end and that is all I was doing. I was driving at a perfectly normal, safe speed for that road. No question of me stopping or going excessively slowly and certainly no question of me taking any photos at all.'.

On the other hand of course Mrs Clarke says, 'Well, that's what I saw. I saw him driving very, very slowly. The car paused. It stopped at the other side of the road and I could see from the kitchen window that he appeared to be taking photographs of me and also of my boyfriend's car. My sister went rushing out into the bedroom and then she appeared outside with her own camera in time to take some photographs of Mr Clarke as he was alongside the boyfriend's car, that's Mr Senior's car, and also as he was driving out of the street.' Mr Senior again confirms the fact that certainly he saw Mr Clarke in the street and pausing - in his car - pausing alongside his own car that was out there."

12. The judge then goes on to comment on discrepancies in the evidence relating to the incident on 28 May. He says:

"All I will say that, and I do accept the fact that of course there are discrepancies in what Mrs Clarke and her witnesses have had to say about what exactly transpired on that occasion but I have absolutely no doubt whatsoever that there would also have been criticism of witnesses had those witnesses been absolutely word perfect. Whatever happens, when it comes to looking at the evidence of witnesses, there is always the accusation either that witnesses have been rehearsed or that the discrepancies of course are so great that it must be untrue, but there is a complete divergence there, the suggestion being quite clearly that Mrs Clarke and her sister and Mr Senior have been lying about what happened."

13. The judge then deals with a number of offensive text messages received by Mr Clarke, some of which Mrs Clarke admitted sending to him. Mr Clarke sought to say that these were relevant as demonstrating that she was not frightened of him and, as the judge paraphrased it, that she was "spoiling for trouble". The judge said that he took Mrs Clarke's conduct in sending these messages into account, but that it was by no means determinative of the application.
14. The judge then expressed his conclusions in the following terms:

"I now come to my conclusions. Having considered everything that has been put before me and having seen and heard the witnesses, it seems absolutely clear that this is a matter that depends solely upon credibility. I have no difficulty, I have got to say, satisfying myself to the appropriate standard that it is more than just coincidence that Mr Clarke should choose to go out in his car on the 23rd of May at the same time as Mrs Clarke was leaving her mother's with the children. He doesn't deny that he drove past her. The issue here is did he drive slowly and, in effect, menacingly past her in order to place her in fear and make her know of his presence and that in fact, in effect, he knew that she was back in town.

Having summarised the evidence so far as this is concerned, I have absolutely no doubt that her account is the more accurate one. I find this to be proved.

On the 24th of May there is a clear dispute as to whether this happened at all. Mr Clarke, as I have said, denied that he ever went down the street on that day and went past her sister's flat. Mrs Clarke and her sister say that they saw that he was there and that he was driving his Scimitar, quite specific about this. He admits that he has a Scimitar. I believe he said it was a J registered one but he has a Scimitar and I know exactly what a Scimitar looks like. I have no hesitation in accepting their account that he did on that day drive slowly past the flat and that was with the intention of frightening and harassing her and that he indeed succeeded...

Finally, I turn to the 28th of May. Having seen and heard the witnesses I am quite sure that Mr Clarke drove down the street past the sister's with the one intention and one intention only of frightening Mrs Clarke. There may have been discrepancies in what the witnesses exactly say they saw but there's no dispute that he was in the street and that he must have driven past. He knew exactly in my view what he was doing and why he was in that street. I don't accept his account of the events. I am sure that he paused on the way along and certainly gave the appearance at the very least of taking pictures. He was certainly there long enough to give time for the sister, who is under sufficient disability to need a walking stick, to go into her bedroom, get her camera and go out onto the street and still manage to take a photograph of what is highly likely to be his motor vehicle and which he accepts looks like his motor vehicle turning at the end of the street. I am quite sure that he knew what was in the court documents that were served on him on the 21st of May and that he knew his ex-wife must be back in the area. It must have been like manna from heaven when he actually saw her on the 23re of May and everything else then followed.

To summarise, I therefore find that all three breaches are proved."

15. The grounds in the appellant's notice take a relatively narrow point. The judge is said to have erred in finding that the evidence showed beyond reasonable doubt that the appellant had committed the three breaches, and in particular at paragraph 2:

"... the learned judge erred in that he made a fundamental mistake of fact, wrongly believing the witness Pauline Evans to be a corroborative eye-witness to the alleged breach, in that:

i) the learned judge wrongly believed that Pauline Evans had seen the Appellant driving his Scimitar motor car on Grove Lea Walk on 24th May 2004 in breach of the injunction (which the Appellant denied) when in fact she had seen the Appellant drive his Scimitar motor car on Church Balk Lane, not amounting to a breach of the injunction (which the Appellant accepted);

ii) the learned judge wrongly believed that Pauline Evans had seen the Appellant drive so slowly as to be with the intention of being frightening; whereas she merely saw him driving appropriately slowly.

3. The above mistaken finding of fact was an integral part of the learned judge's reasoning and findings that the 3 breaches were proved beyond reasonable doubt."

16. The notice is appropriately expanded in an amended skeleton argument which is now placed before us. It appears to me that in relation to the incident on 24 May, the judge made a mistake about Pauline Evans' evidence. She had not seen Mr Clarke driving past her house or in the road in which she lived: she had seen him in a car in a different location and one in which he was fully entitled to be. This mistake, although it relates only to one of the three incidents, is said to vitiate all three findings.
17. Pauline Evans made two statements. The first was to the police. It is dated 31 May and deals only with the incident on 28 May. The account she gives in that statement is both similar to her oral evidence and to the evidence given by Mrs Clarke about the events on that day as found by the judge.
18. Her second statement, dated 3 June, deals with events on 23 and 24 May. As to the latter, she said:

"The following day, Monday 24th May about 3.10 pm I was walking down Church Balk Lane, having just turned out of my street. I saw Mr Clarke drive past me slowly. I rang Sandra who was at my house to warn her Mr Clarke was about.

I did not see him again in that area until Friday 28th May the details of which are contained in my [illegible] statement."

19. We have a transcript of Pauline's oral evidence. As to 23 May and the incidents when she was visiting her mother with her sister, she was extensively and properly cross-examined, but in my judgment, having read her evidence, it remains consistent with that of Mrs Clarke as to what had occurred.
20. As to 24 May she accepts, as she has said throughout, that she saw Mr Clarke not in her street but in an adjacent street, Church Balk Lane, and she agrees that she rang her sister to warn her that Mr Clarke was about. As to 28 May she was again cross-examined as to that incident and she has not said anything inconsistent with her previous statement.
21. As to 24 May Mrs Clarke 's written evidence was similar to that of her sister's. Her sister had rung her to tell her that she had seen Mr Clarke on Church Balk in his Scimitar motor car, that road being the road at the bottom of her sister's road. That was at 3.10 pm. She did not see him at that point but believed him to be in the area. She says that at about 3.45 she was sitting at the kitchen window doing some paperwork when she saw him drive past very slowly.
22. The allegation in the grounds of appeal I have already read and it is plain to me that the judge did make an error about Miss Evans' evidence. He appears to have misunderstood it in relation to the second incident. She said she had seen Mr Clarke in his car on Church Balk Lane and telephoned her sister to warn her that Mr Clarke was in the vicinity, whereas the judge finds "both of these witnesses well and truly put him in that street" (ie Grove Lea Walk, where Miss Evans lives) on that day.
23. Speaking for myself, it is plain to me that this is an error made by the judge. The question is as to its consequence in relation to his findings overall. For the appellant, counsel seeks to argue that the mistake vitiates the remainder of the judge's findings. She advances this argument on the basis that as the judge had dealt with the matter as an issue of credibility he had accepted the evidence of Mrs Clarke very largely because he believed it to be corroborated in all material respects by the evidence of her sister; whereas in truth the evidence as to the second incident was not so corroborated and accordingly the lack of corroboration affects the judge's reasoning in relation to the other two incidents.
24. Speaking for myself, I cannot accept that argument. The judge was entitled to assess Mrs Clarke's credibility. He plainly did so. He found her to be truthful, and there is no reason why he should not have found, applying the appropriate standard and burden of proof, that, certainly in relation to the first and third incidents, she was telling the truth and indeed that her sister's version corroborated her story.
25. As to the second incident of course the error is not that of Miss Evans. The error is that of the judge. Miss Evans was consistent throughout. She had never said what the judge thought that she did say in relation to the second incident. In these circumstances, it seems to me that no real criticism can be levelled against the judge's findings in relation to incidents one and three.
26. So far as incident one is concerned, it appears to be common ground that Mr Clarke drove past his wife and children as they were walking away from their mother's house. The only witnesses to what actually happened when he did so were herself and Mr Clarke, and it is plain that the judge, as he was entitled to do, preferred the evidence of Mrs Clarke. Furthermore, in relation to that incident Mrs Clarke's account is corroborated to the extent that she was seen by her sister to leave her mother's address and they remained in telephone contact in case there was any harassment. Thus even if the judge was wrong about incident two, in my judgment that does not affect incident one where the evidence seems to have been very clear and very plain; and the judge was entitled to choose between the two versions put to him.
27. Similarly in relation to incident three the curious feature of this is that that was the incident first reported to the police. Although the judge listed them in chronological order the evidence about the first two incidents only emerged after the evidence about the third had been given by way of witness statements to the police. Mrs Clarke gave her statement on Friday 28 May, which was effectively a contemporaneous statement of what had occurred. Miss Evans gave a statement three days later, but again is consistent with what Mrs Clarke had already disclosed to the police. In these circumstances, in relation to the third incident, it seems to me once again that the question of mistake in relation to incident two does not effect incident three and the judge was perfectly entitled, on the evidence available to him, to make findings in relation to the third incident.
28. In relation to the second incident it would of course be possible, I think, taking a robust view, to regard the judge's slip as merely a slip and one which did not affect the outcome. However, I remind myself that these are contempt proceedings where the burden and standard of proof are to the criminal standard, the burden remaining on the applicant who seeks the committal order. In these circumstances, given the judge's error, it would, in my judgment, be unsafe to allow that finding to stand. Justice I think has not only to be done, but to be seen to be done, and I think Mr Clarke, however badly he may or may not have behaved, would be under a legitimate sense of grievance if he were found to be guilty of an incident where the judge had made an error in his findings of fact.
29. Although I do not think the matter is entirely clear-cut, for my part I would allow the appeal to the limited extent of deleting the reference to this second incident, but upholding the judge's findings on paragraphs 1 and 3 of his order. I would accordingly allow the appeal to that extent.
30. LORD JUSTICE THORPE: I agree, for the reasons given by my Lord. I only add that it seems to me unlikely that the removal of incident two will have any material effect on disposal. Accordingly, these appellate proceedings will have little practical consequence.
31. Had either counsel pointed out to the judge his error at the conclusion of his judgment on 9 June, he would no doubt have had the opportunity of making his judgment good and removing the consequence of his error. Counsel should never forget the importance of drawing trial judges' attention to inadvertent slips. Their responsibility to do so does serve to reduce the business of this court.

(Appeal allowed; Appellant's publicly-funded costs to be subject to detailed assessment).