English and Welsh Courts - Miscellaneous

IN THE CENTRAL LONDON COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24 June 2015

DISTRICT JUDGE BROOKS:

1. The application before the court is a committal application based upon the claimant's notice to show cause that is dated, I believe, 30 May 2015. The court is also dealing with two matters arising pursuant to a power of arrest granted as a result of the interim injunction made on 21 April 2015. Under that injunction, the court prohibited the defendant, Miss Tricia Clifton, whether by herself or by instructing or encouraging others, from doing three things. The first was using or threatening to use violence towards any of the claimant's employees, agents or contractors or residents of 220, Arlington Road, Camden, London, members of their family, lawful visitors to or anyone residing in or visiting Arlington as aforesaid.
2. The second, using aggressive behaviour, foul and/or abusive language and/or gestures towards any of the claimant's employees, agents or contractors all residents of Arlington as aforesaid, members of their family, lawful visitors to or anyone residing in or visiting Arlington as aforesaid, entering on or remaining in Arlington as aforesaid.
3. I will say now that most of the matters which I am dealing with today are relating to that third matter, entering on or remaining in Arlington.
4. The defendant was served with all the relevant papers on 22 April 2015 at 5.20. I have seen the certificate of service confirming what she was served with. The defendant was arrested on 6 May for allegedly breaching the injunction. She appeared before District Judge Langley on 7 May who ordered directions for the service of evidence and for listing the contempt application on 28 May. The defendant did not use the opportunity to serve any evidence whatsoever.
5. The claimant, as I indicated, issued a show cause application on 13 May and it was served on 20 May at 10.30am outside Pentonville Prison on the defendant's release from that institution.
6. As directed by District Judge Langley, the matter came before me on 28 May. I adjourned the matter then because I had concerns that, although the defendant was aware of the breach of 6 May and what the court was going to do about that, I was not satisfied that the defendant had been properly notified of the show cause application following hearing evidence from Ms. Cahill. I make no criticism of her for that but the defendant was not explicitly told that the show cause would be dealt with at the same time. I then relisted the matter as soon as possible and the matter came before me again on 8 June. Regrettably, again, I had to adjourn the matter because of the fairly new practice direction of 26 May 2015 and the recent decision of the Court of Appeal in Brown v Haringey of 14 May 2015.
7. The practice direction required that applications for committal had to be properly advertised. Nothing was said about what would happen if it was not properly advertised but, given the decision of the Court of Appeal in Brown, I thought it was prudent, as the defendant's liberty was at stake, to make sure that all procedural requirements were complied with and therefore adjourned the matter to today, which is 24 June.
8. It is relevant that, before the hearing today, the defendant was arrested for a breach of the injunction on 20 June 2015. She was brought before the court - before me in fact - on the Monday 22 June by two police officers. At that time, she confirmed that she had received all of the relevant papers but had mislaid them. Therefore, steps were taken helpfully by Mr. Lane, who appeared for the claimant, to provide further copies of all relevant documents. Those documents included not only the previous papers which had been served and the previous orders but also the papers in relation to the alleged breach on 20 June.
9. The defendant asked not to be held on remand pending the hearing as she wished to seek legal advice. After listening to submissions, I was concerned that she should have the opportunity to obtain legal advice, bearing in mind her liberty was at stake, particularly following the comments of the Court of Appeal in Brown and particularly bearing in mind this had been the only breach since the breach on 6 May, and she should be given the opportunity, as the committal hearing was only a day or two away.
10. She said that she would seek advice. She said that she may well go back to her previous criminal solicitors and asked my advice as to whether they would help. I declined to provide that advice but had an informal conversation - perhaps "informal" is not the right word - a conversation with her about that, but it was not for me to tell her which solicitors she should choose. I also made sure that she had the number for the Law Society so she could contact the Law Society so she could find a solicitor to seek legal advice.
11. I had hoped at that stage that she would turn up today. I had serious reservations that she would. She has not. I had made it quite clear at the beginning of this hearing that I would go ahead and deal with the matters raised by Mr. Justice Cobb in his decision in Sanchez v Oboz of 6 February 2015. At para.5, Mr. Justice Cobb sets out nine matters which it is suggested the court must consider when deciding to go ahead and deal with this sort of application in the absence of a defendant. Going through those, the first one is whether the respondent has been served with the relevant documents, including a notice of this hearing.

"2. Whether the respondent had sufficient notice to enable them to prepare for the hearing".

12. In relation to those two, the respondent was here on Monday. I am also told that attempts had been made to let her know that today was taking place. She was certainly here on Monday and raised no concerns at that stage as to whether she would be able to attend. The only issue was seeking and obtaining legal advice. She has not attended. She has not contacted the claimant. She has not contacted the court. Bearing in mind she has not attended the previous hearing which was on 8 June and I was satisfied then that she was aware of that date. I can only take it that she has completely ignored the court process and chosen not to attend.
13. Reason three: whether any reason has been advanced for their non-attendance. I have just dealt with that. Reason four: whether by reference to the nature and circumstances of the respondent's behaviour they have waived their right to be present - i.e., is it reasonable to conclude that the respondent knew of or was indifferent to the consequences of the case proceeding in their absence. Again, I have already dealt with that.
14. Whether an adjournment would be likely to secure the attendance of the respondent or at least facilitate their representation. In my judgment, it certainly would not. The defendant was here on Monday and had every opportunity to attend today and has chosen, in my judgment, not to do so.
15. Reason six: the extent of the disadvantage to the respondent in not being able to present their account of events. That is a matter which I need to give a little more thought to but clearly, as I have already indicated, the defendant had an opportunity to be here. The evidence that I have heard today was not only the written evidence and live evidence from two witnesses; I also had CCTV footage to which I will return. In my judgment, there is no real disadvantage to the respondent or defendant in not attending today because the evidence was absolutely clear.
16. Reason seven: whether undue prejudice would be caused to the applicant by any delay. In my judgment, it certainly would. When the matter was before me previously, there had been no other breaches. That is on 8 June. Since then, there has been a further breach and she has been arrested at the claimant's premises, again completely flouting the order which has been made.
17. Given the background to this matter which is set out in the previous statement of Ms. Cahill, there is no doubt in my mind that she may well continue to flout the order.
18. Eight: whether undue prejudice would be caused to the forensic process if the application was to proceed in the absence of the respondent. The answer to that is there is no prejudice. The court has before it all available evidence, be it written, oral and/or CCTV footage.
19. Nine: the terms of the overriding objective, including the obligation of the court to deal with the case justly, including doing so expeditiously and fairly, and taking any step or making any orders for the purpose of furthering the overriding objective. In my judgment, it is absolutely clear that the court needs to deal with this matter. There have been previous adjournments. The defendant has flouted the court process and had the opportunity to attend. Other cases could have been listed in dealt with and court time has been set aside to deal with this matter and it is right, in my judgment, that the matter proceeds in the defendant's absence.
20. In a notice to show cause, ten matters are set out setting out the defendant's breaches. In fact, there are 11 matters taking into account the arrest on 20 June. These include breaches on 22, 24 twice, 25, 26 April and then on 3 May, 5 May three times and also on 6 May. What is interesting - and I will return to this later - is that the first breach on 22 April was the day on which she had been served with the injunction. She decided to completely flout that injunction.
21. The evidence I have heard was contained in the statements of PC King and also of Ms. Cahill. They are both credible witnesses and I have no reason to doubt what they have told me. PC King was at the premises on 6 May with a couple of his colleagues. The defendant was arrested inside the premises after she had to be removed from a locked toilet, after being given the opportunity to vacate the toilet without that taking place. She chose to ignore it. I have seen the CCTV footage of that. It is clear on that occasion that the defendant was in the premises for some 17 minutes. There is a variation on the timings but, looking at the CCTV footage, she entered the premises at 1.35 and left the premises and was arrested at 1.53.
22. That is not hearsay evidence; that is live and direct evidence of someone who was on the premises. Ms. Cahill was also on the premises at that time. The rest of Ms. Cahill's evidence deals with matters of hearsay because she was not in attendance at the relevant time. Her evidence is supported by the CCTV footage which, in my mind, cannot be challenged. I say that cannot be challenged because Ms. Cahill identified the defendant during the various extracts which were seen by the court. I also was able to identify the defendant because I remembered what she looked like having seen her just two days ago.
23. In addition, there are incident reports which were completed, as Ms. Cahill told me, within a very short period after each breach had taken place. I am satisfied that those are proper and true explanations of what took place.
24. Looking at the show cause, dealing with the 20 June incident, there is a statement from PC Johnson that says that the defendant was found in the room of Mr. O'Connor at the premises on 20 June. A knock was made at the door on the day in question. No one answered. A member of staff used their pass to gain entry. Miss Clifton was in the room. She was arrested and escorted off the premises. The CCTV footage shows that the defendant was in the premises for a short while, that she went up in a lift. It does not show that she was violent or abusive. She had been in the reception area for one to two minutes and it also showed the defendant being led away in handcuffs after her arrest.
25. In relation to the 6 May incident, I have already dealt with that. In relation to the incident on 22 April 2015, what is said is that she entered and remained in the property, when asked by staff, refused to leave and sat on a bench in the reception area. The CCTV footage which I saw clearly bears that out. She was talking to the receptionist. She sat on a bench, having entered the property at 8.50 and having left at 9.01.
26. There are two incidents on 24 April. I should say the allegation about the incident where she approached the glass door and waved her handbag causing the door to open and close is not being proceeded with because it is accepted that that would not amount to a breach of the injunction. I am glad that Mr. Underwood has quite rightly withdrawn that. I would not have found that to have been a breach of the order which I set out earlier in this judgment.
27. There was a second incident on 24 April at 8.30, although the timing on the CCTV footage which I saw differs. What is clear is, on the footage, she entered at 8.23 and left at 8.35 so again we have a period of some 12 minutes. On the CCTV footage, it can be seen that a member of staff gestured in a way to suggest that the defendant leave the premises. She completely ignored that. She went into the toilet and, as I have mentioned, left the building some 12 minutes after entering it.
28. Then she returned at 8.36. The tape ended at 8.39. After leaving the building, she came back into it again.
29. On 25 April, the allegation is that she entered the building with Mr. O'Connor, she remained in there, went and used the toilet in the reception area and then sat on the bench. The footage confirms that she entered the building at 7.02 and appeared to leave at 7.06.
30. The allegation relied upon on 25 April at 7 o'clock is supported by a document which appears that p.83 in the bundle which, as I indicated, Ms. Cahill confirmed.
31. Again, there was an incident on 26 April where it is alleged that the defendant entered and remained in the building and that Mr. O'Connor tried to discourage

her from going up in the lift with him, but she got into the lift and went to his

room on the first floor. The footage which I saw shows that she did enter the building at 7.10 and went up in the lift at 7.16, and that she was arrested at 7.32. It does not show that Mr. O'Connor tried to discourage her but that is something which is set out at p.85 in the accident and incident reporting form completed by James McGrath on 26 April and I accept that that is what happened.

32. In relation to the incident on 3 May, it was alleged that the defendant entered and remained in Arlington and banged on the toilet door in reception and then that there was an altercation with a carer and that she was abusive and threatening towards them. The footage shows that she entered at 5.33 and appears to have left the building between 5.38 and 39. The footage did not show that there had been an altercation but that is a matter which was set out in the notes exhibited to Ms. Cahill's statement and that note has been made again by James McGrath. He made it quite clear and gives the name of the carer being David Roadhouse. There was an altercation and the defendant was verbally abusive and threatening to the carer.
33. The next incident was on 5 May. In fact, there were three incidents on that day. The first one is that she entered and remained in the building and went into the toilet in the reception area and threatened to "get the army on the claimant". The footage confirms that she entered the building and went into the toilet and that she was there for some time. Again, there is a note supporting the allegation which has been made.
34. In relation to the second incident on that day, she appears to have entered the building at 4.48 and left the building at 17.01. She sat on a bench and she was also at a table.
35. In relation to the last incident, again she walked into reception and attempted to get into the lift. That is supported by what I saw on the CCTV footage. In addition, she lit a cigarette which, I understand, is prohibited by law in any event and she leaves the building some three minutes later at 17.40.
36. I am satisfied, having seen the CCTV footage and having read and heard the evidence, that there is cogent evidence to prove the allegations. I have to be satisfied on the criminal standard - that is beyond reasonable doubt - and I am sure, having seen and listened to this evidence, despite some of it being hearsay evidence, supported by the CCTV footage, that the defendant has breached the injunction.
37. There is compelling evidence that the defendant is guilty of contempt for each of the matters relied upon. That is, 10 of the 11 allegations, one of them having been withdrawn. I am also satisfied that the defendant has no regard whatsoever for the injunction which has been served upon her. There is clear evidence in the CCTV footage which I saw that at least one member of staff gently tried to persuade her to leave. She completely ignored that individual, turned round, went into the toilet, stayed and left when she wanted to. She was content to breach this order at will and has no regard for the court process.
38. I am satisfied about those matters. As I indicated during the discussion earlier on with Mr. Underwood, following Brown, I would like the defendant brought into court so I could deal with the issue of sentencing and also as to whether she wished to enter a plea in mitigation and also obtain legal advice. I am going to defer sentencing. I will need to hear from Mr. Underwood as to what my powers are to have her arrested if that is the way to proceed, or to find some other way of dealing with it so she is brought before the court so that the matter can be dealt with.