English and Welsh Courts - Miscellaneous

IN THE COUNTY COURT AT CHELMSFORD

		Priory Place New London Road Chelmsford CM2 0PP
		29th January 2016

JUDGMENT

HER HONOUR JUDGE MURFITT:

1. This claim is brought by Chelmer Housing Partnership. It is an application, effectively, to commit Mr Stuart Brittain for breach of an injunction that was made on 25^th June and reconsidered on 16^th July last year, the terms of which preclude him from using or threatening violence, harassing, intimidating, alarming or causing distress, verbally abusing or using offensive language and gestures or visiting the claimant’'s offices without a confirmed appointment. That is an abridged summary of the actions which the order binds him not to do, but it relates essentially to the inhabitants of the estate on which he lives and people who might be visiting it, and the employees of the Chelmer Housing Partnership.
2. The Chelmer Housing Partnership issued its application for committal of Mr Brittain some time ago now. It was on 17^th September 2015 to be precise that he was arrested under the power of arrest attached to that order and when attending before the court the matter was adjourned. He was bailed to attend a hearing on 23^rd September. On that date, it was adjourned again to a hearing on 7^th October and on 7^th October adjourned for a third time until 18^th November. Each time it was on terms that there should be no further breaches and the reasons as I understand it principally for these adjournments related to Mr Brittain’'s desire to obtain legal aid in order to be represented. I outline that simply because pursuant to schedule 1 of the Act, that is to say the Anti-social Behaviour, Crime and Policing Act 2014, where individuals are brought to the court after remand, they may be remanded on successive occasions by the court but where a person is remanded on bail the adjournment should not be for more than four weeks at a time. So it is that those successive adjournments have led to this hearing before me at the end of January.
3. Essentially, the case against Mr Brittain is founded upon the events of two different days and those two days were 1^st September and 10^th September 2015. On 1^st September, the first of those occasions, his neighbours immediately opposite, that is to say Nicholas Tait, who lives with Penny Barnard, complained about various verbal assaults that they say assailed their ears from the defendant through his open window. These are set out in the statements that are produced in the court bundle and on page 11 Mr Tait lists some of the terms which he says were directed at him. They included words such as: “"You fat prick”"; “"You fat fucking cunt”"; and other words such as, “"I am going to stab you. I am going to shoot you”". I will not go through the entire list because some of them are in dispute, although not all of them.
4. Neither Mr Tait, nor his partner, who endorses what he says, have attended. Hearsay notices have been produced indicating that they are not able to come, respectively, due to work commitments and/or childcare commitments, although that poses a real difficulty for the Court in resolving those aspects which are in issue because it seems to me that I ought to give less weight to evidence which is not susceptible to cross-examination than evidence which is. I heard evidence from Mr Brittain himself, taking issue with some of, but not all of, the words that he is alleged to have said, and particularly those containing an element of violence, which he objects to. I also heard evidence from him that Mr Tait was also being provocative both by way of manual gestures and in words that he said back to him.
5. I was invited to have a look today at a video which Mr Tait evidently took of the event on his mobile telephone and in the material that I was invited to listen to, which was not particularly lengthy. It is manifestly obvious that some of the words of abuse are audible such as: “"You fat little prick”"; “"You prick”"; “"Are you recording me like a prick?”"; “"You are going to cop it good now”"; and again, “"You fat prick”". Having heard the video for himself, Mr Brittain had the good sense to accept that he had said each of those things, and indeed in the face of a denial in his witness statement that he had uttered the word “"prick”" at any stage, he accepted that he must have done. He said, “"Well, it is five months ago”". I think it is probably entirely likely that he had been drinking at the time, and that of course would impair his memory of those events.
6. That is not to say that I accept as given everything that Mr Tait and his partner have said because as I say they are not here to answer questions about it. So, it seems to me that where the evidence of those two individuals diverge from Mr Brittain, I ought to accept the evidence of Mr Brittain. Nevertheless, as he I think acknowledges, what he did on that occasion was in breach of the order. It is important for Mr Brittain to keep his cool with the neighbours , and although I have great sympathy for him in circumstances where he is provoked by similar language, there are steps that he too can take in relation to such behaviour in the future. I accept that he has been taking some measures to exclude the intimidation or excitement he may feel from the behaviour of his fellow residents, by putting up blinds, for example, on his windows.
7. I turn to the events of 10^th September last year. In that respect, I did hear some live evidence from both Mr Brittain and from the gardener at the premises, who was witness to another verbal outburst, (which I think is probably the best word for it), from Mr Brittain. On that occasion, it was the morning time and in his evidence, which he gave before me today, Mr Burke went through the duties that he undertakes. He is clearly a man who is aware of the fact that this particular housing development houses a number of vulnerable people and I have no doubt that Mr Brittain comes within that category because he has a number of medical difficulties, as well as being dependant on alcohol at the moment. There are also violent people and to some extent the gardeners are given some prior notice that in any given block there may be vulnerable individuals. He did not know of course Mr Brittain personally but he was aware that there may be an individual living in this particular block who was vulnerable.
8. Mr Burke himself was there on 10^th September but was not, I accept, on 9^th September. He did not demur from the fact that his colleague may have been undertaking some trimming of hedges on the day prior but no trimming of hedges took place on the day that he was there when they were weed spraying. One of the reasons for the relevance of that is that Mr Brittain considers that his outburst on this occasion may have been provoked by the amount of noise that was being made by the gardener. I have to say where Mr Brittain diverged from the evidence of Mr Burke I do prefer the evidence of Mr Burke whom I found to be a calm and considered and reliable witness. It may well be that Mr Brittain has heard a number of environmental noises which he finds very provoking and on a number of different occasions but I am satisfied that this was not one of them. It may well have been that he conflated his memory of a time when he had been wound up by gardening noise with this particular day but I am satisfied that the language to which these gentlemen were exposed by Mr Brittain was entirely unprovoked.
9. The details of the language that Mr Burke was subjected to are outlined in his statement as they are also outlined in his oral evidence but they included being called, “"You useless cunts”" and “"Why don’'t you fucking cut it all down?”" These were remarks which also for his part Mr Brittain maintained were provoked by the attitude of Mr Burke. He contends that Mr Burke also was abusive towards him. Looking at the evidence which was contained within Mr Brittain’'s statement, he says that he invited them in for a cup of tea but this was rejected, and adds that at some point Mr Burke said, “"It is all right, thank you”", in response to that invitation. However Mr Brittain maintains that Mr Burke also said, “"If you don’'t fucking like it, shut the door”", and that his own response to that was: “"Fuck off, you Beavis and Buttheads”". I do not accept that Mr Burke did in fact say, “"If you don’'t fucking like it, shut the door”". It does not seem to me he had any particular motivation to be rude on that occasion. He was not making any noise. There was not anything for Mr Brittain not to like. I accept that the reason that he politely rejected the cup of tea was because he felt it would be unwise in view of the abuse that he had been on the receiving end of from Mr Brittain. I do not doubt that Mr Brittain may have used language such as calling them “"Beavis and Buttheads”" but I apprehend that using the words “"Fuck off, you Beavis and Buttheads”" was not expected to be seen as a joke, even if, Mr Burke conceded in his evidence, that had the words “"Beavis and Buttheads”" been said it might have been slightly amusing but I accept the words that Mr Brittain actually used were not amusing at the time.
10. So, I am satisfied on the evidence of Mr Burke, whose evidence as I say I do accept, that Mr Brittain again lost control of his temper on that occasion, perhaps asm he says he reacted to the general noise to which he says he has been subject for some time in the development in which he lives. I have to consider what is the appropriate way to deal with matters, on the basis of the admissions that Mr Brittain makes in relation to 1^st September and the evidence of Mr Burke that I accepted in relation to 10^th September,. I accept the list of remedies that are available to me are as set out in the notes to rule 81.29 and they include the ability to commit an individual to prison. The maximum is two years. I accept that I can make suspended orders for committal to prison on any terms, and that I can make a fine. I can take security for good behaviour. I can make another injunction for example against people, who are not parties but who were part of a breach. I can adjourn the sentence and if I do, like with a suspended committal, I have to specify a period after which an individual will no longer be punished or I can make no order at all.
11. I also have regard to the sentencing guidelines in the light of the authority which I have been referred to, which is Amicus Horizon Ltd v Thorley [2012] EWCA Civ 817. I have been provided with a copy of the sentencing guidelines for breach of anti-social behaviour orders. The first matter which I am invited to look at is: what is the level of harm in this particular case selected from the categories set out in the sentencing guidelines. The lowest is where no harm is caused or intended; there is an absence of intimidation or causing any fear of violence; where breaches involve being drunk or being caught begging; and those which evidence no harassment, alarm or distress being caused. That may be in the lowest category. The next category is lesser degree of harm intended or likely. Examples there include lesser degrees of threats or intimidation or the use of seriously abusive language (or causing damage to property, which I am not concerned with). Nobody suggests that this is a case in which serious harm was caused or intended but looking between those two descriptions of the harm in this particular case I think it is right to say that it is the middling category of lesser degree of harm intended or likely.
12. So far as the sentencing guidelines are concerned, the starting point is said to be six weeks custody, a sentencing range, a community order up to 26 weeks of custody. However, on behalf of the claimant, two weeks is suggested. It is important, of course, that I look at both the aggravating factors and the mitigating factors. It seems to me, looking at the aggravating factors outlined in the sentencing guidelines, none of those that are printed there particularly apply. It is fair to say that Mr Brittain does not have a history of disobedience to court orders and this particular application is not being heard after any previous committal application, nor subsequent to previous breach proceedings. There is no evidence that a particular person is targeted by his behaviour. What the claimant suggests is that two breaches is worse than one breach. That is true but I am not sure that it is a particularly aggravating factor in this case.
13. I take on board that I have found that Mr Brittain has not been entirely truthful in his statement where he, for example, suggests that he had not used the word “"prick”" to the neighbours who live opposite him when it is claimed that he did so but I also take into account that having seen the video he admitted in the end that he had done so. I give him some credit for that and some credit for the fact that it may also be impairment of memory caused by alcohol that led to that untruth. I have, of course, also found that the evidence of Mr Burke is truthful and to the extent that it differs from Mr Brittain, it follows that he has been untruthful. Is that a particularly aggravating factor? It might go to the prospect of it happening again. That said, it does seem to me that Mr Brittain is a man who is trying to take some steps to avoid history repeating itself. I do take on board that he has complied with the order since 10^th September and that is a lengthy period of some five months.
14. I take on board also that he did show some contrition in the witness box, that he is working on his health problems in the sense that he has decided to engage with Open Road, which I am sure is going to be an extraordinarily helpful resource if he continues with that engagement. He has yet to undertake the anger management work which resource is being made available to him through Open Road and he expects to continue counselling. Engagement with that service, I am sure is key, because there are triggers for his stress which remain. They include the environmental noise which upsets him and they include also the stresses of unemployment at the moment and worry because he has a hospital operation coming up. I accept that some of those are hardships of life which we all have to bear and find ways of mitigating, in order that our behaviour does not upset others, but I do also think those are all important things which mitigate strongly against any custodial sentence being imposed at this stage because I think that the work he needs to do (and which may not be available in prison) is so important to him.
15. It seems to me, bearing in mind both the aggravating and mitigating factors, that the right sentence for me to make in this case is a suspended sentence of one week imprisonment and that will serve as, I hope, another reminder to Mr Brittain of the importance of complying with this order as it carries on because the consequences of breaching it again would be an automatic revocation of the suspension, in other words he would need to serve that seven days. So, it is all the more important to carry on the good work that he has started, and to make sure that the future is different from the way that it has been in the past. That is my order.

CSL FOR THE CLAIMANT: Thank you, your honour. How long, your honour, would you like to suspend that?

THE JUDGE: I am going to suspend it for six months.

CSL FOR THE CLAIMANT: I am grateful. Your honour, just two further matters. The injunction expires tomorrow but I have given notice to Mr Ingham that I was going to ask for it to be extended further.

THE JUDGE: Yes, I think it is sensible that the terms of the suspension are the continuing adherence to that order of which I will continue for the same period of the suspension.

CSL FOR THE CLAIMANT: I am grateful.

THE JUDGE: Right.

CSL FOR THE CLAIMANT: Your honour, the only remaining matter is costs. Mr Brittain is legally aided so I appreciate that costs protection will apply. If I can just perhaps hand up the cost schedule which has been served? Effectively, the only costs that are being sought here are counsel’'s fee for the various hearings. Chelmer Housing are not seeking any costs beyond counsel’'s fees.

THE JUDGE: Right, very well. Are there any observations you want to make?

MR INGHAM: Costs are discretionary and you have heard what his financial position is and it is whether there is any point at the moment in making [inaudible].

THE JUDGE: I take on board that the only way in which any housing associations such as these, or claimants in this position, can usually reclaim the costs that they incur is by the addition of a monthly or weekly payment on the rent, rather in the same way as arrears are charged, but equally I have to start from the premise, do I not, that having had the obligation to bring the hearing before this court in the interests of the remaining residents they have succeeded. It seems to me that so far as the sum is concerned they have not charged for all of the costs that they have incurred. The predominant amount is the costs of instructing counsel to come here today and the cost of that does seem reasonable to me but I am clear that so far as the enforcement of it is concerned, I should not add that it has got to be paid within 14 days or 21 days at the moment.

CSL FOR THE CLAIMANT: It will be subject to costs protection because Mr Brittain is legally aided anyway.

THE JUDGE: Indeed, so it will be subject to a means assessment of his ability to pay.

MR INGHAM: Yes.

CSL FOR THE CLAIMANT: Your honour, just so I am clear about the order... your honour, so it will be a one-week suspended sentence suspended for six months. Your honour said it would be suspended on terms?

THE JUDGE: Terms of continuing compliance with the order which will be extended for the same period.

CSL FOR THE CLAIMANT: So, the injunction will be extended.

THE JUDGE: Yes.

CSL FOR THE CLAIMANT: I am grateful. Thank you, your honour.

THE JUDGE: Right.

MR INGHAM: Could I just have an order for legal aid assessment, your honour? Thank you.

THE JUDGE: Of course, yes, an assessment of those publicly funded costs.

CSL FOR THE CLAIMANT: Your honour, would you like myself and Mr Ingham to prepare the order?

THE JUDGE: I would, thank you. That would be very helpful. If you could email it into the court office.

CSL FOR THE CLAIMANT: Of course, thank you.

THE JUDGE: Thank you very much for your help today.

[Hearing ends]