England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE FOX)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th November 2008

Lord Justice Laws:

1. This is an appeal against the decision of the Recorder of Middlesbrough made in the Middlesbrough County Court on 16 October 2008, by which he found that the appellant was in contempt of an Anti-social Behaviour Injunction Order made in the Bishop Auckland County Court on 7 October 2008 and committed the appellant to prison for six months.
2. Because of his earlier conduct the appellant had been removed from the local authority's ordinary housing list. He became an introductory tenant of the respondent authority on 28 June 2008, taking up residence in a self-contained flat at 20 Greenside Place, Crook. This block of flats provides accommodation for residents who are, as it is put, "in the main vulnerable by way of their age, frailty or mental ability". There is a common ground floor entrance. The appellant is an alcoholic. On 2 September 2008 he was served with a notice of proceedings claiming possession of his flat. The notice alleged various incidents of anti-social behaviour perpetrated by him between 11 July 2008 and 29 September 2008. He requested, as was his right, a review of the decision to issue those proceedings. That was heard and dismissed at the meeting of the council's appeals committee on 2 October 2008. The possession proceedings were issued in the Bishop Auckland County Court on 7 October 2008. They were transferred to the Newcastle County Court at a directions hearing on 21 October 2008. A substantive hearing date is still awaited.
3. Also on 7 October 2008 the respondent authority applied, without notice to the appellant, for an Anti-social Behaviour Injunction Order pursuant to section 153D of the Housing Act 1996. The same evidence was relied upon as that prepared for the possession proceedings and contained in a witness statement of Mr Christopher Walton, tenancy enforcement manager with the respondent. Mr Walton stated at paragraph 3 of that statement that the application was made without notice because he believed that the appellant would continue to behave in an anti-social manner towards his neighbours and officers of the council. It is clear from all the evidence that one of the most troublesome features of this case is the fear which other residents at the block of flats, Greenside Place, entertain towards this appellant.
4. The anti-social behaviour injunction order was made on 7 October as asked. It forbade the appellant from:

"… engaging or threatening to engage in conduct that is capable of causing nuisance or annoyance to any person residing in or lawfully visiting Greenside Place, Crook or any member of the office of Wear Valley District Council…"

Then there is a specific prohibition against his entering the common room at the block of flats. A power of arrest was attached to the order. The order was first served at about 4.25pm on the same day, 7 October, but the copy so served recited the wrong set of statutory provisions. That was corrected; the order was re-served on the appellant at about 2.15pm the next day, 8 October.

5. On 14 October the respondent sought and obtained from District Judge Robertson a warrant of arrest directed to the appellant, based on evidence contained in an affidavit sworn by Mr Walton on the same day, 14 October. The facts deposed to by Mr Walton are set out in considerable detail. They disclose breaches of the order of 7 October 2008 as follows:

(1) Playing loud music at 4.30pm on 8 October 2008.

(2) Playing loud music and banging on the doors of other residents and using foul and abusive language at 9.30pm on 8 October.

(3) Playing loud music and shouting abuse at 9.15pm on 9 October (that is a matter in respect of which the appellant subsequently pleaded guilty in the Magistrates' Court; I will make brief further reference to that).

(4) Playing loud music, allowing other alcoholics to visit the flat and causing a disturbance over the weekend of 11 and 12 October 2008.

(5) At 4.30pm on 13 October, playing loud music and threatening to smash up the flat if he were subsequently evicted from it.

6. The appellant pleaded guilty in the Magistrates' Court to an offence of behaving in a drunken and abusive fashion. That was the matter which constituted the third of the breaches I have just listed. The plea was taken on 10 October 2008 at the Newton Aycliffe Magistrates' Court and the appellant was fined £100 with £15 costs and £15 victim surcharge. The arrest warrant was in due course executed. The appellant was brought before the Recorder of Middlesbrough on 16 October 2008. He accepted that he had been in breach of the injunction order by committing the offence to which he had pleaded guilty in the Magistrates' Court. As regards the other matters, Mr Walton and no other witness gave evidence for the respondent, and the appellant gave evidence on his own behalf. It appears he was not cross-examined. My understanding is that on that occasion he made no admissions beyond that relating to the conviction before the Magistrates' Court, and certainly took no steps to express any regret or apology for anything he had done or distress that he had caused.
7. The Recorder gave a reasoned judgment of which there is an agreed note which I should set out:

"This is an action for breach of an injunction made on 7^th October 2008 against the present Respondent forbidding him form causing a disturbance at Greenside Place, Crook. Two days later the respondent, as admitted to the Justices on the following day and by his Counsel in the present hearing, admitted and admits a breach of the Court's Order in this case by swearing at residents, being drunk and causing a nuisance. For my determination as a matter of fact, applying a high standard of proof and being sure beyond a reasonable doubt of any assertion before finding for it, it is the matter of substantial alleged breaches of the 11^th, 12^th and 13^th of this month.

The evidence from the applicant was from Christopher Walton whose affidavit is dated 14^th October 2008, the contents of which has been confirmed in cross-examination and on his own oath this afternoon. I also heard form the Respondent upon his own oath. I have no hesitation in saying where there is conflict I reject the Respondent's evidence and accept Mr Walton's evidence.

Turning in particular, to which there is direct evidence, namely events of 13^th October, I accept Mr Walton's evidence of Greenside Place resident complaining of a noise nuisance that weekend and that she was crying and plainly in a state – the fact of which is direct evidence. So that afternoon, Mr Walton went to Greenside Place. I accept his evidence that he could hear music which on his arrival emanated form the respondent's flat; he encountered female residents in a distressed state and plainly extremely fearful of the respondent – that too is direct evidence of the state of the occupants. I find his account at paragraphs 21 and 22 to be entirely accurate and honest. That episode itself indicates an attitude of aggression and un-cooperation and that given the chance the Respondent would continue in like vein, namely not giving a fig for the peace of mind of his fellow occupants and indeed the continuation of his aggressive behaviour towards them. From that I can infer that the residents telephoning Mr Walton, in particular the two residents in touch with Mr Walton by telephone were distressed agitated and fearful of the Respondent, were so by reason of his behaviour towards them.

Accordingly, I find there to be breaches in abundance of the Court's order. An aggravating feature is the chronology of all of this. The injunction was made on 7^th October 2008; the first breach took place within 48 hours; it was dealt with by the Magistrates' Court and you were fined £100. This did not make a wit of difference.

[Then after submissions had been made as to sentence:]

You have already had me find you in breach of an order made on 7^th October 2008. You admitted a breach and have been found in further breach. I find it is a technical argument only that this is the first breach before this Court. The Magistrates' order did not deter you. Yes, you will lose your home but in view of your threats you have to be prevented from returning in addition to being punished. The sentence, bearing in mind these matters and that you chose to contest this hearing, is one of six months' imprisonment."

8. The grounds of appeal all relate to the sentence passed by the learned Recorder. However, it is submitted in the skeleton argument prepared by Mr Boucher-Giles on the appellant's behalf that breaches numbered (1), (2) and (4) should not have been found proved. The evidence on breach (1) consisted in Mr Walton's hearsay account of what had been said to him on the telephone by a housing officer, Mrs Price. She reported loud music being played. Breaches (2) and (4) rested on Mr Walton's hearsay account of what was said to him by unnamed residents of Greenside Place. It is said that the direct evidence of the persons witnessing the breaches should have been called, not least given that the criminal standard of proof applies.
9. It is common ground that hearsay evidence is receivable in proceedings of this kind. To my mind it is important to emphasise that all the relevant events happened within a very short timescale, and Mr Walton was very close to what was happening. In relation to breach (1), the phone call was made while the appellant's music was still actually being played. Breach (2) was reported to Mr Walton the morning after it had been perpetrated, and residents making the complaint were quite plainly distressed. It is I think helpful, in order to have a flavour of the case, to read this passage from Mr Walton's affidavit of 14 October 2008 at paragraph 21:

"The music emanating from John Robson's flat [I should interpolate: the context shows, I think, that Mr Walton is here referring to Monday, 13 October] could be heard clearly throughout the building and I had to knock on the door to his flat several times before it was answered by an unknown male aged approximately 30 years who appeared to be drunk. When John Robson came to the door his first words were 'Fucking Hell -- what do you want now!' John Robson was advised to turn his music down as it was disturbing other residents. Robson stated that his music was not loud and at first refused to turn it down but whilst arguing at the front door of the flat the music was turned down by somebody within the property.

"22. John Robson was very drunk and was breathing heavily through his nose. John Robson stated to me that if I was successful in evicting him from the property on 21 October he would smash the flat up so that it was not recognisable. I advised John Robson that he was prohibited from making threats under the terms of his ASBI [that of course is the earlier order] and warned him not to do anything that may lead to his arrest. John Robson then said 'Well, if I do it you won't be able to get me'. John Robson was again advised to keep his music to a low level and not to do anything which caused a nuisance to other residents."

10. While it is true that the three particular breaches to which Mr Boucher-Giles draws attention in his skeleton argument depended for their proof on hearsay evidence, at any rate in large measure, looking at the case as a whole it is quite plain that Mr Walton was in close contact to what was happening, and it is entirely obvious that residents of this block of flats, to say nothing of the servants of the authority itself, were being terrorised by this man over the period during which the breaches allegedly occurred. In all the circumstances I am very far from being persuaded that it was inappropriate for the Recorder to receive and rely on the hearsay evidence that was offered here. I accept it might have been better if the appellant had been cross-examined, but nothing really turns on that as regards the safety of the Recorder's findings.
11. I turn to the sentence. Mr Boucher-Giles submits that a six-month sentence was excessive, that it would have been proportionate and appropriate to pass a suspended sentence. He relies on the well-known case of Hale v Tanner [2000] 1 WLR 2377, but it is clear, and Mr Boucher-Giles acknowledges as much, that the guidance there given by Hale LJ as she then was arose specifically in the context of breaches of orders made in family proceedings. The learned Lady Justice states as much in terms at paragraph 25 of the judgment. Although the case is with great deference an important one, it does not seem to me to carry matters further forward here.
12. I should also notice that by force of section 258 of the Criminal Justice Act 2003, the appellant may expect to serve half the period of six months passed by the learned Recorder. That section of the Criminal Justice Act seems to have brought sentences for contempt into line with sentences passed under the general criminal law, at any rate as far as concerns the provisions relating to release on licence halfway through the sentence. So that is an important feature to be borne in mind.
13. The appellant is 59 years old. He has a string of previous convictions. I have already indicated my view that it is plain he terrorised the people in the block of flats; the breaches were serious, repeated, and they were aggravated by the appellant's attitude to Mr Walton himself, who confronted him at the premises. I regard this as a very bad case.
14. We are told, and it is helpful to have it in mind, that the appellant is seeking to purge his contempt before HHJ Fox, the learned Recorder. That process involves application being made to HHJ Fox as the original trial judge, and is at present underway. We also have a letter from the appellant himself which acknowledges his alcoholism, says he is receiving treatment and apologises to the officials of the council and residents of Greenside Place. One hopes, of course, that his condition, and especially his addiction to drink, is capable of being improved or ameliorated; but any such improvement is something, as it seems to me, that would most pertinently be addressed to the Recorder in the course of seeking to have the appellant's contempt purged.
15. In all these circumstances, while certainly six months is a severe sentence for a breach of an order of this kind, it seems to me in the circumstances to have been wholly appropriate, and at the very least it is impossible to say that it is manifestly excessive.
16. For those reasons, then, I for my part would dismiss this appeal.

Lord Justice Rix:

17. I agree.

Lord Justice Moses:

18. I also agree.

Order: Appeal dismissed.