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URL: http://www.bailii.org/ew/cases/Misc/2016/B1.html
Cite as: [2016] EW Misc B1 (CC)

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		Case No: B01WJ057

IN THE COUNTY COURT
SITTING IN WALSALL

Walsall County Court
Bridge House
47-55 Bridge Street
Walsall WS1 1JQ

26th January 2016

B e f o r e :

HIS HONOUR JUDGE MITHANI QC
____________________

	WALSALL HOUSING GROUP	Claimant
	- and -
	EMMA McCABE
	(2) RICHARD JAMES
	(3) DEAN KENDALL	Defendants

____________________

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____________________

HTML VERSION OF JUDGMENT
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JUDGE MITHANI:

Mr James, the allegation made by the Claimant in these proceedings is that you breached the terms of an injunction dated 10^th November 2015 made by District Judge Gibson. That injunction was supported by a power of arrest. As a result of the alleged breach of that injunction, you were arrested and brought before the court on Tuesday of last week, 19^th January 2016.

You were accompanied by Emma McCabe and Dean Kendall on that date. They, too, had been made subject to injunctions in roughly the same terms as those which apply to you. Paragraph 5 of the injunction order dated 10^th November 2015 provided that you were not to allow Emma McCabe or Dean Kendall to visit or access any part of 45 Cedar Avenue, or to live or stay at the property at any time.

When this matter came before me on 19^th January 2016, I granted bail to all of you on condition, among other things, that you attended court today. You attended. Ms McCabe and Dean Kendall did not. I do not know why they have not attended. I will deal with their position once I have finished giving my judgment in relation to you.

The allegation against you is that, on 19^th January 2016, you allowed access to the property at 45 Cedar Avenue to Emma McCabe and Dean Kendall. I adjourned the matter on the last occasion to allow you to take legal advice. I indicated to all three of you that I would deal with this matter today if you wished essentially to admit the allegation that was made against you. However, I did not wish you to make any admission lightly, given the nature of these proceedings. I felt that I should give you some time to take legal advice and to decide after you had taken that legal advice what you wished to do. Unfortunately you were not able to take legal advice.

I invited you, before I heard this case today, to let me know whether you wished me to grant an adjournment in order that you could take legal advice, but you indicated that you accepted the substance of the allegation that was made against you, and were content for me to deal with this matter today. I have, therefore, dealt with the matter today. I have heard two witnesses on behalf of the Claimant, and I have also heard your evidence.

It is plain from the evidence that I have heard that the allegation against you is made out. Indeed, I know that you do not dispute the substance of the allegation. Just so that you know, it is the Claimant's burden to prove that the allegation is made out, and the standard of proof that applies is the criminal standard of proof. In other words, the Claimant has to prove – so that I am sure – that the allegation it makes is established.

As I have said, it is plain from the evidence you gave, leaving aside the evidence which I heard from the Claimant's witnesses, that you do not dispute that you were guilty of the breach about which complaint is made against you. Specifically, in spite of initially seeking to suggest that you were somehow threatened by Emma McCabe to provide her and Dean Kendall with access to the property and to allow them to stay there, you subsequently conceded, in the course of giving your evidence, that that was not the case. In fact, what you said was that neither of them had made any threat to you; that you had willingly allowed both of them to come to your property; that you had allowed them to do so not just on that occasion but on previous occasions in the past; that, on that particular occasion, they had come to the property the night before and had stayed there overnight; that you were in constant communication and contact with them because you often drove Dean Kendall, who has a disability, around Walsall and other parts of the West Midlands; and that, in fact, on that particular day, you had offered to take him to Walsall town centre after he had finished showering and having a change of clothing at the property. Some of those matters constitute the main aggravating features of this breach.

There is good reason for the grant of an injunction. Specifically, there is a good reason for a prohibition to be included in an injunction which bans you from bringing individuals to your property. In the present case, those individuals have been guilty of appalling acts of antisocial behaviour. I have heard some of the acts about which complaint was made against them, and I can well understand why it was thought appropriate for the court to ban you from bringing them on to the property. I have also heard how one particular victim has been affected by those particular acts of antisocial behaviour.

The matters in mitigation that come out from your evidence are these: first, you made a complete, albeit belated, admission that you were guilty of the allegation of breach made against you; second, you accepted that some of the matters relied upon by you as purportedly justifying the breach were incorrect; and third, you decided not to defend these proceedings, although it is clear to me that that was because it must have been obvious to you that the case against you was very strong. Nonetheless, it is right to record that you admitted the breach and did not defend these proceedings. You, therefore, avoided a substantial amount of costs and inconvenience to the Claimant. If you had not admitted the breach, this case would have had to be adjourned to another day.

How should I deal with you? This is a very serious breach, and there is no question in my mind that the custody threshold has been crossed. It must follow that the only way in which I can deal with this breach is by the imposition of a custodial sentence. The issue that I have to consider is whether I should suspend that sentence of imprisonment or whether I should impose a period of immediate custody.

I consider that the mitigation to which I have made reference allows me to suspend the sentence of imprisonment, and that is what I propose doing. What I am going to say is that you should be subject to a sentence of imprisonment of three months, but I will suspend that sentence of imprisonment on condition that you comply with the terms of the injunction, and specifically that you comply with the provision of the injunction which prohibits Emma McCabe and Dean Kendall having access to your property.

Let me make these points very clear to you. The first point is this. The suspension will be for a period of six months. If during that period of time, you commit a breach of any of the provisions of the injunction, not only will you be dealt with for that breach but this sentence will fall to be activated (possibly in full) and it is almost certain that, in those circumstances, the court will impose a consecutive sentence.

The second point is that if this court were to be satisfied, to the required standard of proof, on any further evidence which it had heard in the future, that you had allowed Emma McCabe and Dean Kendall to come onto your property, you must accept, almost as night follows day, that you will go to prison.

The third point is that you must not assume from the sentence which I have imposed that the Claimant will not bring possession proceedings against you.

The whole point in granting injunctions of this type is to make sure that those who are affected by the appalling acts of antisocial behaviour that have taken place in the present case are protected. They must know that the court is prepared to monitor the matter to ensure that their safety and security is protected. Accordingly, I am also going to ask that, if there is any breach of the injunction to which you continue to be subject, the matter comes back before me, if possible. That is because I will remember what I have said, even if you forget, and I will be reminded of what I have said, even if I forget.

Let me emphasis this, please. If you were to be in breach of the terms of this injunction again, you are, absent compelling circumstances, almost certainly likely to receive a sentence of immediate custody. Do you understand?