English and Welsh Courts - Miscellaneous

THE COUNTY COURT AT WALSALL

		Bridge House Bridge Street Walsall
		12th October 2016

J U D G M E N T

MR. RECORDER TIDBURY:

1. This is a committal application by the Applicants/Claimants, Walsall Housing Group, to commit the Defendant, Mr. Daniel Alan Carter, to prison for breach of the injunction granted by this court on 5^th April 2016. That injunction is at page 17 of the bundle before me. Before me the Applicant was represented by Miss Newman and the Respondent has appeared in person.
2. The terms of the injunction were that:

(1) Daniel Alan Carter is forbidden, whether by himself or by allowing, inciting, encouraging or instructing any other person, to cause or threaten any nuisance or annoyance whatsoever at any time to any person living in or visiting Broad Meadow, Walsall, or to anyone engaged in lawful activities in the locality or, in particular, behave in such a manner, directly or indirectly, towards Charlotte Berry, Raymond Berry or any member of their family, in particular their children, Davina Berry, Nikita Berry, Kieran Berry and Amelia Berry, in any location,

(2) forbidden to behave in a violent, intimidating, abusive, aggressive or threatening manner in any way whatsoever towards anyone living in or visiting Broad Meadow aforesaid or to anyone otherwise engaged in lawful activities in the locality or, in particular, behave in such a manner, directly or indirectly, towards Charlotte Berry, Raymond Berry, any member of their family, in particular their children – and I have already set out their children's names – in any location;

(3) interfere with or harass or in any way whatsoever anyone living in or visiting Broad Meadow aforesaid, anyone otherwise engaged in lawful activities in the locality or, in particular, behave in such a manner, directly or indirectly, towards Charlotte Berry, Raymond Berry or any member of their family, in particular their children – and, again, I have set those out; and finally, which does not concern us,

(4) cause or allow any excessive disturbance or noise to emanate from the property or to be caused so that it can be heard by other residents or outside in the street at any time including but not limited to shouting, singing, using foul, abusive and racist language or playing loud music (inaudible) but it has not played a central role in this case.

3. The Respondent was served with the injunction on 6^th April 2016. On 26^th April 2016 the Respondent, Mr. Carter, was given an immediate custodial sentence of six weeks' imprisonment as a result of breaching the terms of the injunction immediately after service. He subsequently purged that contempt and was released from prison.
4. Further breaches are alleged to have taken place on 12^th August 2016, 18^th September 2016 and 21^st September 2016. As a consequence of the further breaches the Respondent was arrested on 4^th October 2016. He was brought before the court on 5^th October 2016 and this date was set for hearing and the matter has been heard and concluded before me on 12^th October 2016.
5. Going briefly into the history, this is a case at bottom involving a problem between adjoining neighbours. The Respondent lives, though sometimes it appears to say he does not live there, with his mother, Mrs. Carter, in her home – she is an owner/occupier – at 14 Broad Meadow, Aldridge. The persons that the injunction primarily seeks to protect are the Berry family who are the tenants of the Applicants, Walsall Housing Group, and live in the adjoining property at number 12. The Berrys live in their property with their four children and their eldest daughter, Davina, has a boyfriend called Reece. I have been given a bundle of papers by the Respondent. The top of those papers is a letter from John Carter which I have read. That letter sets out his version of events. He was not called to give evidence before me so I have not heard that from him, but it sets out that on his case he has lived there perfectly happily for 26 years until the neighbours came to number 12. Initially, everything was friendship. Thereafter it deteriorated and since then it has been a problem. I have read and have heard the evidence of Daniel Carter, and I will come to that in a moment but he has put in a statement undated by handed in to court yesterday. Also behind that statement he puts in a document which has not been referred to in evidence which is either a Facebook or a Windows messaging or possibly text messages which allegedly pass between one of the daughters, Davina, in the Berry household and, I think, Mr. Carter but I am not clear. I think it is the friend of Mr. Carter who, again, has not given evidence and that simply sets out that there is an element of dispute running on between these two families. The Defendant would say that it contains threats to him.
6. The chronology of this case, insofar it is relevant, is that in 2011 the Respondent, Mr. Carter, was convicted of racist harassment towards the Berrys' 12 year old daughter, that in September 2014 he was convicted of racist abuse towards the Berrys and sentenced to nine months' imprisonment, that in December 2015 he returned to live in the property next door to the Berrys with his parents. On 5^th April 2016 the interim injunction was granted. That was served on 6^th April, and breached. As a result of that he was committed to prison on 26^th April for a period of six weeks. On 9^th May he purged his contempt, said he would not return to his mother's address and that he had done his time. Thereafter the three breaches that I have to deal with today are alleged to have taken place. The first breach on 12^th August 2016: it is alleged that the Respondent shouted and used verbal abuse and threatening behaviour towards Raymond Berry including the words "fucking dickhead", calling his sister-in-law and mother-in-law whores and saying that they would get their comeuppance and that this was judgment day. Those events – and we will go into them in slightly more detail – it appears that Mr. Berry was inside his property and could hear the Respondent ranting and shouting from next door, he thought from the conservatory, about him, his family and using derogatory and nasty language. The second breach is alleged to have occurred on 18^th September. There was a problem in the road outside the property, not directly outside, further down the road, between the Respondent and Reece. Reece made certain allegations against the Respondent. Those allegations have not been pursued but what is said is that the Respondent admitted to P.C. Beards that he had said to Reece Watkiss, "Tell you what. Come around the corner away from my mum's house and I'll fight you". The third breach is a breach that occurred on the path outside 12 to 14 Broad Meadow, so between the two houses, outside the houses, where the Respondent was abusive to a plumber who was attending at the Berry property and used racist language about and clearly intended for the Berrys to hear and be aware of. Following that the police attempted to arrest the Respondent for breach of his anti-social behaviour injunction. He was away for a period of time. They thereafter continued to try to arrest him, succeeded in arresting him when they found him on 4^th October 2016 and produced him to court, as I have said, on 5^th October.
7. I have heard evidence today from a number of witnesses. This is a committal hearing. The criminal standard of proof applies I have to be satisfied so that I am sure that the Applicants have proved their case against Mr. Carter and I then have to be satisfied so that I am sure that any facts that are proved amount to a breach of the injunction. Otherwise I must dismiss the application.
8. The breaches alleged are in effect three continuing acts of the same sort of conduct that the Respondent has been found guilty of on previous occasions. Separately, they might not appear to be the most serious of occurrences. Taken, however, with what has gone on before in the past and, if proved, they will amount to a much more serious pattern of behaviour.
9. I have heard evidence from Dawn Parsons, the W.H.G. (Walsall Housing Group I am going to refer to as W.H.G.) employee with responsibility for the tenants on this estate. She informed me that the Defendant had said, whilst before His Honour Judge Mithani when purging his contempt, that he was not going to go on living in his mother's property. In fact, it appears that shortly afterwards he returned, if not to live full time, certainly to live a good deal of the time at that address. Otherwise her evidence dealt with the fact that she decided to commence these proceedings, arranged for a statement to be obtained from Mr. Edgar, the plumber who attended at the Berry property on 21^st September 2016 and who was a witness to the behaviour by Mr. Carter. I heard evidence from P.C. Beard, who was on duty when he was called out to the address on 18^th September 2016. His evidence was that he remembered that he was on uniform duty when he was called out to Broad Meadow. He went first to the Berry house and then went round to the Carter household. Mr. Carter was not there. He spoke to the Defendant on the phone and asked him to come back so that he could speak to him. He spoke to him outside first of all in the car park where I understand that Mr. Carter was searched and he said that Mr. Carter had given the version of events which he gave evidence about in court, that he had been followed up the street by Reece who had his dog with him. He said that Mr. Carter told him that he had said to Reece words to the effect of, "Come on then, let's sort it out and have a fight. Come round the back away from me mum's house", words to that effect as set out in "Tell you what. Come around the corner away from my mum's house and I'll fight you". Initially when cross-examining the Defendant denied having said anything of the sort. He asserted that he had said, put to the officer that he had said the initial bit about being pursued up the road by the dog. He said, however, he had not at any stage said words to the effect of, "Come round the corner and have a fight". He said he had made a complaint about the police officer and the way that he had acted. In his evidence P.C. Beard was certain – and I accept his evidence – that he had been told that Reece was, so far as Mr. Carter was concerned, the aggressor and that Mr. Carter had said words to the effect of "Come around the corner away from my mum's house and we'll sort it out and have a fight. I then heard the evidence of Matthew Edgar. Matthew Edgar is a plumber employed by W.H.G. He attended at the Berry house on 21^st September 2016 to do some plumbing repairs. Going back out of the house to get some parts from his car to do the work he saw a man walking down the path of the house next door. Initially he thought that he was speaking on the telephone very loudly but then as the man's shouting drew attention to himself he realised he was not talking on the phone and that he was in fact speaking out loud on the path between 12 and 14. His remarks then were directed at Mr. Edgar. Why were W.H.G., Walsall Housing Group, people always at 12 Broad Meadow, that is the Berry household, doing works, and then he said that Mr. Carter was "fucking and blinding" and started to direct his remarks towards the company and said that W.H.G. are all "scumbags". He was using racially offensive language and referring to the neighbours as "black bastards". He was asking why it was that the black people had work done for them, what about the white people? He was sure that the person who was talking – and there is no dispute because Mr. Carter accepted that he was talking at that point -- was Mr. Carter. In cross-examination Mr. Edgar was asked about this and it was put to him that Mr. Carter had come out of the house with his mum and he was having a conversation about the state of the flats where his friend lives. Mr. Edgar answered that Mr. Carter was not, so far as he could see, speaking to his mother. He was referring to the people in the Berry household as "black bastards" and, so far as Mr. Edgar could understand, he thought that Mr. Carter must have an issue with the people in the house where he was doing the work. He said that the tone of Mr. Carter's voice was aggressive and he clearly thought the remarks were aimed at the Berry household. One of the points made to Mr. Edgar in cross-examination by Mr. Carter was that he would not have used the words "black" in respect of the Berry household, he would have used the word "Asian".
10. I then heard the evidence of Mr. Raymond Berry. He gave evidence about the event that occurred on 12^th August 2016. He said on that date he was inside the house. He knew when it was because he had just ceased working for the council on 11^th August and he had a new job starting after the 12^th. He was in making a cup of tea and he heard the abuse coming through the wall from next door. He knows well the voice of Mr. Carter. There is a six foot high fence in the garden. He said he was in the house, the window was open. Mr. Carter is always, as he described it, aggressive and he said he thought he was in the conservatory at the time. He said that the words "fucking dickhead" were used and also what sounded like his mother-in-law, sister-in-law and wife being referred to as "whores". Certainly he was absolutely convinced about the word "whores" and he also said that he was threatened that he would have his comeuppance and that this was judgment day. He was asked by me about his racial make-up and said his family was half Jamaican and that this racial abuse had a bad effect on his wife and on his household. It was put to him by the Defendant that he was telling a pack of lies and that the Defendant could not have been or would not have been in the house that day because he worked for a food bank with the church in Walsall on weekdays.
11. I heard the evidence of P.C. Whittaker. His evidence was not really material to the breaches before me.
12. I then heard the evidence from Mr. Carter. I will read out his statement. "Your honour, my statement is to state that everything will be the whole truth to say that I have not breached my two years on licence. I have had many problems with this same family starting in 2011. Since then this whole family have verbally abused me constantly. They have not left my family alone and this has gone on for five years now. I want my life in peace and move on to better my life and they won't let me as they keep threatening me and making false accusations against me. Raymond Berry assaulted me in 2014 when he punched me in the face but I was persuaded not to involve the police. Kieran Berry and Reece Watkiss attacked me in my mum's alleyway when they came at me with a knife and ripped my new jacket. On September 18^th 2016 I left the house with my nephew Shane and we walked up towards Lazy Hill. On the way we met Nathan. We didn't know Nathan was at the end of the road and Nathan said, 'Look behind you, Dan. It's Reece with his dog from next door' and then Reece approached me and got in my face. At this point I told him to grow up and get out of my face. The police turned up on this day because they made an accusation I was carrying a weapon. I was at Nathan's. The police phoned me and asked me to go to my mum's address so I did. They searched me and found nothing. Due to all the hassle I've received from this family I got in trouble with the police and served my time in gaol and I don't believe I deserve to get in any more trouble. Since I have left gaol I've kept my head in and stayed away from this family as much as possible. They have had an injunction out on me to stop me contacting them but they are always contacting me or trying to through my friend. Surely this can't be right. Yours sincerely, Daniel Carter." In his evidence he was asked to go through the three alleged breaches. On 12^th August he said he was not in his mum's house on that day. "If someone is saying that it was me it wasn't me. As to the words 'judgment day' and 'comeuppance' they were used two or three years ago" and I think he told me that they were part of the allegations made in the earlier events for which he was convicted and sent to prison, but certainly those were not words used on 12^th August 2016. He said that he was not there, he was out at the local project, the charity, food bank in Walsall. He goes every morning to the food bank except for a Monday. Turning to 18^th September he said he had left, walked up the road away and he gave the account that he had given that I have read out in his written statement. He said Reece had followed him with the dog. Reece got in his personal space, and then he said to me, "I'm not gonna have someone in my personal space. I asked him to get out of my personal space" and he indicated very graphically what his personal space was by waving his arms round in front of him in a windmill circle so as far as he was concerned anybody within the space, within where his arms could reach, was within his personal space. He said, "It was just him and the dog. He wanted to fight me. I did say to him," he said, "come round the corner and I will fight you." I then asked him whether or not he accepted that his admitting that was totally inconsistent with what he had put to P.C. Beard and he said to me, "I now accept that I said that to P.C. Beard". Then he was asked about 21^st September. He said he was not abusive to anybody. He did not use the term "black bastards" on that occasion. He was cross-examined, agreed there had been a history of problems between the families, agreed he had been convicted of racist abuse but said "Why would I do two years in gaol and probation and licence and then do it again?" He said that he was not the sort of person who would use the language that was alleged on 12^th August, that he had used the words "Comeuppance" and "judgment day" in the past but otherwise that was not him and he did not say that. He was out at the time. Nobody would have been at home. It is his mum's property. "We all work", and then he said, "That family are all lying scumbags". As to Mr. Edgar's evidence, the plumber, he said, "I was leaving my property. I accept I said 'Why do they not work at white people's houses?'" He was asked about calling his neighbours "black bastards" and denied that he called them "black bastards" but admitted that he had called W.H.G. "scumbags". And then he said Mr. Edgar had given the evidence he gave because he was employed by W.H.G, and he was paid to do that job.
13. I have to conclude whether or not I am satisfied so I am sure that the breaches have taken place and whether I am satisfied so that I am sure that the facts behind each breach actually constitute a breach of the injunction. I heard submissions from Miss Newman and I heard the Defendant himself. Miss Newman submitted that the Defendant was not credible, he had demonstrated his volatility in the course of giving evidence. As to breach 1 she submitted Mr. Berry was entirely credible. The words used were words that certainly the Defendant admitted using in the past. Mr. Berry recognised the Defendant's voice, and she submitted, firstly, that the Defendant accepts that he used the language at some point, even if not at that point. She submitted that, if Mr. Berry was making it up, he would have been far more sure rather than "sounded like he said 'whore'" about mother-in-law, sister-in-law and wife being whores. I have to say from where I listened to his evidence yes, he was uncertain about mother-in-law, sister-in-law and wife but he was absolutely clear about the word "whore". 3. She submitted that Mr. Berry had come to court at the risk of his new job because of the importance that he placed upon these proceedings and the concerns for his family. 4. She submitted that it was certainly correct to say that the August occurrence was one which Mr. Berry had wanted to leave and not pursue, not to proceed with by itself, because he hoped that things were going to die down and life would go on in a more peaceful way. As to the second breach, she relied on the denial in P.C. Beard's evidence followed by the admission and said that simply showed how unreliable the Defendant was as a witness. She submitted that that was a breach of the order, and as to the third breach she submitted that it was half admitted in that the words "scumbags", "Why don't you do any work for white people?" were admitted, although the "fucking and blinding" and the "black bastards" was denied. She said there was a long history in this case of racist abuse and that this was a threat, it was intimidatory, it was abusive and it was racially abusive. She relied on the arm raising and waving and the personal space as showing how volatile this man was and that he would disregard the injunction. Mr. Carter submitted that 12^th August was not him. He would not come and do it again because he had been to prison, served his time and does not want to go back to prison and he was not going to breach and what he said was, if that breach was proved, he admitted that it would be a breach. On the 18^th September incident he submitted that that was part of a problem and he said that his friend, Mr. Adam, had received the threatening text from Davina. He said those came in fact from Reece as well and he denied that he had approached Reece and said it was Reece who approached him. As to Mr. Edgar, he said he had gone out with his mother. "I am verbally opinionated". At that time he was staying, he said, with his friend Nathan and he thought Mr. Edgar was not telling the truth, was mistaken in what he had heard. He said he was not verbally abusive.
14. I have looked at this evidence separately on each of these charges. I start with the evidence of Mr. Edgar. Despite what the Defendant says, I am totally satisfied and have no hesitation in saying that he was a completely honest witness. There is no way, in my judgment, that he is someone who would have been influenced in his evidence, by the fact that he was employed by Walsall Housing Group, the Applicants in this application. He struck me as a straight forward man with a trade, plumbing trade, who was honest and was not going to exaggerate what he had heard. I am fully satisfied that he heard the Defendant saying the things that he said that he had said. I completely accept that he heard Mr. Carter referring to the people next door, to the Berry household, as being "black bastards". I am satisfied that what was said, "What about the white people in this street?" and "Why don't you do any work for the white people?" and "Why are you always coming round there?" were words that were addressed to annoy the Berrys, to cause them upset, disturbance and actually, given the aggressive way in which they were spoken, intimidatory and threatening and that they were above all and, the thing that I criticise most, racist words used by this Defendant. I have not understood the reason that Mr. Carter says that he would not have referred to this family as black. I did not ask Mr. Berry in detail but he said that his family was half Jamaican, I think, half Jamaican or mixed race Jamaican. That would not, in my judgment, be Asian and I therefore can fully understand in a racist sense why the word "black" would be used and it does not make any sense to me that Mr. Carter was saying that he would have used the word "Asian". So I am satisfied that the events of 21^st September occurred as set out in the schedule of breaches and I am satisfied on the criminal standard so I am sure.
15. I turn then to the events of 12^th August. Having seen both the Defendant and Mr. Berry give evidence I am satisfied that Mr. Berry is telling me the truth. I do not accept the evidence of Mr. Carter that he was not in the property and did not use the words alleged. I am sure he did use them and his conduct in the witness box and his lack of control of himself in the way that he became annoyed and upset confirmed me in my view. I am sure he shouted those words with the intention of upsetting, annoying and intimidating his neighbours.
16. Finally I turn to the events of 18^th September. The Defendant submits this was not in the locality of the Berry's home. He accepts that he had said those words. They involve inevitably a breach of the injunction. It takes place, on his version of events, in the course of the neighbour dispute. I put it that way because on his version – and I have not heard Reece's version of what occurred on that day – there was an altercation between himself and Reece. There is no doubt that back in May this year Reece broke a window in the Carter household. I can understand feelings running high by reason of that. That was something which Mr. Berry does not in any sense support or condone and he was very annoyed with Reece that it had happened. It is clearly something that still rankles the Defendant. Of the three breaches, and only because I have not heard from Reece and I have heard only the Defendant's version of what went on behind that, I regard that as the less serious of the breaches and the reason is it does not have in itself a racial element within it and there was bad feeling running between the Defendant and Reece Watkiss. It does not condone what he said, "Come round the back and let's have a fight" but I suppose at least nobody did have a fight on that day in the road in question. As to whether it was within the locality, in my judgment, it is within the area of the house and it is covered by the injunction and Reece is a frequent visitor to the house. He would be regarded as a member of the family. He was engaged in lawful activities within the locality but, as I have said, it is the least of the three.
17. I have now got to consider what to do as a result of having found that the Defendant is in breach of this injunction. It is the second time that it has happened. It is inevitable that I impose a custodial sentence in this case. On the breaches alleged at 1A and 1C I have considered where this sentence should lie. The breach at B I do not intend to impose any sentence in respect of. I have read Nottingham City Council v. Cutts and I am aware of Amicus Horizon v. Fawley where I am referred to the sentencing guidelines. This is a case where the punishment is one for the breach of the court order as well as being for the actions of the Defendant at the time. Looking at this case, this is a breach which has been a continuing series of breaches in this case so that makes it a more serious, it is an aggravating factor. It is a breach that the Defendant fully understands the injunction so there is no mitigation or reduction in the aggravation by reason of lack of understanding or anything else. When I look at what I am sentencing for it is a question of what is the appropriate starting point. This is a case where I have not got power to alter the injunction, which I otherwise would, to say that Daniel Carter should not go to or approach his mother's house. It is a case where I am afraid, with the problems that he seems to have with the neighbours, if I had the power I would order that he should not live in his mother's house and I would give an exclusion zone outside the Berry house that would inevitably include his mother's house. However, section 13(b) of the Act precludes me from doing that. It is a case where he has been sent to prison for six weeks and purged his contempt for similar offences in the past. It is a case where he has received in the criminal courts for similar behaviour much longer sentences than the one I am going to pass. The right sentence for contempt of court in this case is a period of imprisonment for eight weeks. That takes into account the mitigation, such as it may be, of the underlying problems but it also takes into account the fact that this Defendant needs to learn how to curb his tongue and say nothing. It is a case where he undertook on 5^th October not to live in this property. I do not know whether that is something that has happened. Certainly the statement of P.C. Whittaker tends to show that the mother is regarding him as still residing at her address. It may be, however, that though she looks on him as still residing at her address because she regards it as his home, he was not actually living there for the period of that undertaking. I certainly do not find him or view him as having been in breach of that undertaking. For the future, either the local authority or the police should consider making an application that prevented him from living within a certain distance of the Berry household. At this moment in time, having seen him in evidence and having seen the difficulties that he has in restraining himself from speaking about the Berry household other than in highly derogatory terms, it seems to me that it would be better for him if he was not living in that household and probably the only way that this court is not going to have to deal with further breaches is if he does not come to or approach near the Berry household but, as I say, I do not have the power to make such an order in the presently constituted proceedings.