ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE WORSTER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LADY JUSTICE RAFFERTY D.B.E.
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Mr Dewsberry (instructed by Shoosmiths Solicitors) appeared on behalf of the Respondent.
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Lord Justice Hooper:
"There is a public interest in seeing that the terms of such tenancy agreements are fairly and effectively enforced."
"...I am satisfied that the 1st Defendant's activities had a detrimental effect on the neighbourhood, bringing in undesirable people and making at least some of those who lived there more fearful for their safety."
"76. That said, unless I can be reasonably satisfied that the 1st Defendant will stay away from the property on his release, the probability is that drugs will return to the property and the neighbourhood. I can have no confidence in what he says about staying off drugs. He is a long term heroin addict who has ignored the deterrence of imprisonment to carry on his dealing. He has come off drugs before in prison only to relapse 4-5 months later. He has used and dealt drugs from the property knowing that it was illegal and a serious breach of the tenancy, and that he was putting his and his family's home at risk. He seems not to have cared about that (or not cared sufficiently). Nor does he seem to have cared about the effect that his conduct had on those living in the neighbourhood. That is despite being sent to prison in 2004-5 and having the property searched on a number of occasions before his arrest in January 2010. At Mr Nicol's suggestion, he was prepared to give an undertaking to stay away from the property. His preference is to return to be with his family, but he says that has agreed with his wife that he will not do so if she does not want him to. He will find it very hard to stay away.
77. I cannot have any real confidence in the 2nd Defendant's ability to keep her husband away from the property if he decides to return, or in her ability to stop him taking or dealing drugs from there. She has been unable to stop this conduct in the past. It is suggested that she may now do so because the consequences of the breach of a condition to that effect are that she and her children will lose their home. I can see that might be a factor in her mind. But she has neither the
character nor the authority to stop him. It was not suggested that she would report him to the Police if he turned up in breach of his undertaking, or that she would give evidence against him if he were taking drugs. It is unrealistic to think that she would ever do such a thing. Not only that, she has persisted in a misleading account. The trust I can place in her word as to her future conduct is much affected by that.
78. Mr Nicol's argument was that I could be sufficiently confident that the 1st Defendant would stay away from the property. He submitted that the Police would be watching the property, as would the local residents, and as soon as they saw the 1st Defendant return, the Claimant would be able to apply to the Court for an outright order on the basis of a breach of condition, and to enforce the undertaking by way of committal.
79. The fact that none of the Residents are prepared to come to Court and give evidence at this stage makes a reliance upon their policing of this order both unrealistic and unfair on them. It may be that the Police would be concerned to keep a watch on the 1st Defendant on his release, given his history. But it is hardly a satisfactory basis for 'hope' to say that if there is a breach, the Police will catch him. For there to be a 'sound basis for hope that the previous conduct will cease' I must have some real confidence that the Defendants will abide by the suggested conditions and the undertaking willingly. I do not have that sort of confidence in them. I do not consider that the sanctions Mr Nicol suggests are likely to work. As Mr Dewsbury pointed out, the 1st Defendant has shown himself willing to break the law and risk custody in the past. An undertaking (offered for one year following release) is not sufficient comfort."
"In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations."
"Were this case only about the conduct of the Defendants and the consequences of a possession order for them, it would be relatively simple. But, as Mr Dewsbury acknowledged from the outset, there are 'innocents' who would be seriously affected by the order he seeks."
The judge then set out in detail the evidence relating to these children, including in the case of the eldest child his impairment and in the case of the daughter, the 16 year old daughter, he went into details about her schooling.
"What has caused me to pause more than anything is the potential effect on the 'innocent' children, and I recognise that for them the making of a possession order carries with it a substantial degree of unfairness, for they are not in any way responsible for the behaviour that has brought the matter to this point."
"I approached this question [namely whether to suspend the order] with the concerns I have expressed about Shakir and the children very much in mind. An outright order is harsh on them. But a suspended order is unlikely to work. An outright order is a proportionate response to the conduct proved 'in the straightforward sense that nothing less will do'."
He then went on to refer particularly to the serious nature of the offending, the adverse impact on the neighbourhood and the importance that this house was not to be used again by the first defendant for drug dealing.
Chancellor of the High Court:
Lord Justice Rafferty:
Order: Appeal dismissed