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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Peabody Trust v Belonje [2006] EWCA Civ 1518 (30 June 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1518.html
Cite as: [2006] EWCA Civ 1518
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHOREDITCH COUNTY COURT
(HIS HONOUR JUDGE LATHAM)
Strand London, WC2 |
||
B e f o r e :
VICE PRESIDENT, COURT OF APPEAL (CIVIL DIVISION)
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| THE GOVERNORS OF THE PEABODY TRUST | CLAIMANT/RESPONDENT | |
| - v - | ||
| BELONJE | DEFENDANT/APPELLANT |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR A BASTIN (instructed by The Governors of the Peabody Trust) appeared on behalf of the Respondent
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Crown Copyright ©
- LORD JUSTICE BROOKE: On Wednesday 28 June HHJ Latham sitting at the Shoreditch County Court made an order pursuant to his powers under section 155(5) of the Housing Act 1996 to remand the defendant in custody for eight days pending a further hearing in relation to the complaints made against her. Those complaints arise out of allegations that she was in breach of an injunction issued in Shoreditch County Court on 23 March 2006 which made familiar restraints requiring her not to be abusive towards people in the locality of 129 Peabody Buildings, Banner Street. I have been given a copy of the injunction, and I was told that that was a contested hearing and the claimants were unwilling to accept an undertaking by the defendant. A power of arrest was attached to the injunction. A month later there was a complaint which led to the power of arrest being used, and she was brought to court, but the judge released her without enquiring into the matter further on the grounds that what was being complained against her was that her wet laundry was dripping on the neighbour downstairs and no doubt she was warned about her future behaviour.
- The present incident arises out of complaints which were made to the police by a downstairs neighbour, that the defendant had used very vulgar and offensive language to her; that there had been another incident of dripping washing which led to further vulgar abuse; and that on the same day there were two incidents where what is called steaming water was thrown off the balcony, which missed the neighbour; and I am told that it was also alleged that she indulged in generalised abuse. She was arrested by a police officer and kept overnight, and the police officer attended court the following day. The evidence before the judge amounted to the summary of the circumstances which led to the exercise of the power of arrest (that was what the neighbour told the police), other than the custody record and the police's notebook.
- The judge decided to adjourn the matter for a week and to remand her in custody. He recorded that there was a medical report, nearly four months old, which stated that she suffers from depression and receives medication. She had seen the prison doctor the previous evening. She lived alone; she did not work; and the claimants were intending possession proceedings against her based on nuisance. Although she had a fine arts degree, she had no friends or relatives where she might stay if granted bail, and she has nowhere else to stay. The judge accepted that there was a presumption for bail, but said after reminding himself of the power of remand and that the matter must be dealt with within 28 days of granted bail:
- There was a housing manager in court who in effect asked the judge for 28 days to prepare their case, but the judge was not willing to grant such a long adjounment because he was minded to remand the defendant in custody.
- Mr Reid has submitted that when one is concerned with the liberty of the subject one needs to be very careful before remanding someone in custody on untested allegations, and he has told me that the allegations will be disputed in court. In relation to one of them it has been suggested that the defendant has an alibi. Mr Bastin who appears for the landlords says that his clients would be quite happy for Miss Belonje to be released from Holloway Prison provided that she went somewhere else rather than to her flat pending the hearing. Nobody has apparently been in touch with social services or any other welfare authority to explore the possibility of providing housing for the defendant pending the hearing, and I am left in the invidious position of having to determine whether this lady should remain in custody pending the hearing.
- In the last resort, I am persuaded by Mr Reid that it was plainly wrong of the judge not to grant bail pending the hearing, simply on the basis that injunctions were very important in relation to keeping the peace and that this was the second time this lady had been arrested. Mr Reid urged on me that the judge did not address himself as to the likelihood or otherwise of the defendant committing further acts of nuisance pending the hearing next Wednesday. I appreciate I have only got counsel's note of the judgment, but it is quite a full note. When one has untested allegations which do not amount to direct acts of violence (which would give rise to quite different considerations), in my judgment a judge should be appropriately careful in determining whether or not it is necessary to remand a defendant in custody, and with very considerable reluctance I am willing to grant bail pending the hearing next Wednesday.
- If the defendant were here, rather than in prison, I would make it very clear to her that if she did anything between now and next Wednesday which could give rise to a further complaint, her position at the hearing next Wednesday would be likely to be dire because the judge would be of the clear view that fairly drastic action would have to be taken to protect the tenants. In all the circumstances, as I say with very considerable hesitation – this court is always very reluctant to interfere in the exercise of a discretion by an experienced judge in sensitive matters like this – I am persuaded that it is appropriate to grant bail pending the hearing.
- I hope, Mr Reid, that you will get a message by some means or another to your client about what I have said, because if there was any question of any further trouble the power of arrest would no doubt immediately be exercised; back she would go to Holloway Prison, and her position next Wednesday would be severely prejudiced.
- Mr Bastin, I have made it clear that I have been fairly reluctant to take the course I have. I hope you can ensure that your clients alert the police if there is any further trouble between now and next Wednesday, and do their best to inform the neighbours, and particularly the neighbour who complained, that this is very much a holding order, given that there is nowhere else other than prison for the lady to go and I do not think prison is appropriate before the issues are tried out next Wednesday, or whenever they are going to be.
"Injunctions are very important in relation to keeping the peace. This is the second time she has been arrested. I keep in mind the representations made and all that Mr Reid has said."
Order: Appeal allowed.