Barnet London Borough Council v Hurst
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Dyson,Lord Justice Simon Brown |
| Judgment Date | 17 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1009 |
| Docket Number | Case No: B1/2002/1073 PTA, B1/2002/1094 CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 2002 |
[2002] EWCA Civ 1009
Lord Justice Simon Brown
Lord Justice Brooke and
Lord Justice Dyson
Case No: B1/2002/1073 PTA, B1/2002/1094 CCRTF
IN THE SUPREME COURT OF JUDICATURE
OURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
Her Honour Judge Bevington
Royal Courts of Justice
Strand,
London, WC2A 2LL
Ranjit Bhose (instructed by the Borough Solicitor, Barnet LBC) for the Respondent
Steven Woolf (instructed by J D Spicer & Co) for the Appellant
The appeal and cross-appeal
On 21st May 2002 the appellant Rowland Hurst appealed against an order of Judge Bevington made in the Barnet County Court on 3rd May 2002 whereby he was committed to prison for nine months for his admitted breach of an undertaking given to the same court on 21st September 2001. By that undertaking he promised that he would not for a period of two years commit a number of specified acts of anti-social behaviour. In particular, in the present context, he undertook that he would not assault, threaten, harass or cause nuisance to anyone residing in or visiting the block at 30–34A Hamilton Road, London N2.
There is also before the court an application by the London Borough of Barnet, who are the claimants in these proceedings, for permission to cross-appeal against part of the order made by Judge Bevington on 3rd May. In order to understand the purpose of the cross-appeal it is necessary to say a little more about the proceedings as a whole.
The history of the proceedings
They were commenced by a claim form issued on about 16th July 2001. Amended Particulars of Claim were issued on 16th August, and the claimant's application for a permanent injunction came before the court on 21st September when Mr Hurst gave a number of undertakings to the court, including the undertaking mentioned in paragraph 1 above. On the basis of these undertakings the applications for injunctive relief were adjourned generally, with permission to restore.
On 23rd April 2002 the claimants made an application for an order that Mr Hurst be committed to prison for breach of the undertaking mentioned in paragraph 1. They also applied for interim relief against him for the purpose of banning him from the locality of 30–34A Hamilton Road, and in due course Judge Bevington made an order on 3rd May which had the effect of forbidding him from engaging in disruptive conduct at those premises and from coming within 1000 metres of them (the prohibited area being shown on a plan attached to the order). The judge also attached a power of arrest to that order.
The grounds on which the claimants were seeking Mr Hurst's committal to prison were set out in these terms:
"In the early hours of Saturday 6th April 2002 you came to the block at 30–34A Hamilton Road, London N2. You engaged in the following acts:
a. You were loud and noisy, disturbing neighbours' sleep;
b. You kicked your father Anthony Hurst's Ford Escort car and then further attacked the car with an object, smashing glass;
c. You threw a refuse disposal 'wheelie-bin' through the windows of your father's flat at 30 Hamilton Road, smashing glass;
d. You smashed other windows to the rear of 30 Hamilton Road;
e. You entered 30 Hamilton Road without your father's consent, and then caused damage there, pulling down and damaging curtain rails, and smashing a television;
f. You threatened to kill your father;
g. You generally, by these actions, terrified and upset those residing in the block."
The application for further injunctive relief was supported by the evidence of Sheila Oliver who is the acting head of housing management of the claimant authority, Mr Wallace, who is a resident at Hamilton Road, and two police officers. In her affidavit Ms Oliver explained that Mr Hurst's father was a secure tenant of 30 Hamilton Road, and that he had also given an undertaking to the court the previous September as to his behaviour. He had included in his undertaking an undertaking as to the behaviour of his son who either resided with him or frequently visited him.
Ms Oliver had been told by a neighbour (who was too scared for his/her identity to be known) that Mr Hurst had ceased to reside at 30 Hamilton Road since an argument with his father on 3rd March 2002, a matter Mr Hurst had himself apparently confirmed to the police when he said he had not lived there for some weeks prior to the occasion on 6th April when he caused a major disturbance at the block.
She understood that after this most recent incident neighbours were even more frightened than they already were of Mr Hurst and of his unpredictability and violence. The council considered that the only way in which those neighbours would be allowed quiet enjoyment of their homes was if he was simply excluded from the area. Ms Oliver was aware of one elderly neighbour, who was too scared to be identified, whose health had deteriorated markedly since the previous September because she simply could not live life in peace and free from fear.
Mr Wallace gave evidence which directly supported the first three grounds set out in paragraph 5 above. The evidence of the two police officers largely consisted of indirect evidence, although they testified to the state of Mr Hurst's father's flat when they were called to the scene. PC Westoby said that Mr Hurst had been charged with burglary, three counts of criminal damage and threats to kill. He had been in custody since the incident took place, and at the time of the hearing before Judge Bevington on 3rd May he was still in custody, but it was anticipated that he would make a second application for bail on 7th May when he was to be committed for trial.
PC Westoby attached to her affidavit the statements of three residents. The name of one of them had been blacked out because she was simply too scared to be identified. She said that the residents feared for their safety. She added that the police had received numerous telephone calls from concerned neighbours on 6th April because of the noise and damage Mr Hurst was causing.
The original return date of the council's application was 30th April 2002. On that occasion Mr Hurst was produced from prison, but he did not have legal representation, and the judge adjourned the hearing until 2pm on 3rd May, allowing the morning of 3rd May for Mr Hurst to confer with his advisers.
At the start of the hearing on 3rd May the judge raised the question of possible admissions from Mr Hurst. She was of the view that the council's application could be subsumed within the criminal proceedings. Counsel for the defendant, for his part, applied for an adjournment of the application to commit, on the grounds that his client was in custody and would remain there until the criminal trial, so that there was no risk of a repetition of his conduct. It was also argued that Mr Hurst would suffer prejudice if the application to commit was heard. Counsel told the judge that if the hearing did go ahead, his client would not give evidence. Nor would he give instructions to his legal advisers to enable them to cross-examine witnesses. He said that Mr Hurst would suffer prejudice if he had to cross-examine witnesses who would later give evidence in the criminal trial. He would also suffer prejudice if he had to give evidence himself.
The council for its part opposed the application for an adjournment. It was argued on its behalf that applications to commit should be heard swiftly and decisively. There was no real risk of serious prejudice, and the factors put forward by the defence were not the factors the courts had in mind when speaking of such a risk. Mr Hurst had already given parts of his defence to the police, and he no longer had an absolute right to silence anyway. Moreover the evidence against him was overwhelming, such that it was said that his real reason for wanting an adjournment arose simply from a desire to delay for as long as possible. In any event there was no guarantee that he would remain in custody until the trial.
The judge then again revisited the prospect of there being a middle way forward, by which limited admissions would be made. She adjourned the hearing for a few minutes, and when it resumed Mr Hurst was willing to make a formal admission in relation to the first allegation on the Notice to Show Cause, namely that on 6th April 2002 he was "loud and noisy, disturbing the neighbours' sleep".
The council considered this admission to be wholly unsatisfactory, in that it was the least serious of the allegations made against Mr Hurst. It did not accept that the court could either proceed to sentence, or adjourn the balance of the application to commit, on the basis of that single admission.
The judge ruled, however, that she could take this course, and she would adjourn the balance of the council's application until after the conclusion of the criminal proceedings. In sentencing him to nine months imprisonment the judge said that she took into account the fact that Mr Hurst had admitted at least part of what he told her he had done in breaching his solemn promise to the court. She regarded his admission as very important, because it showed his acceptance of what happened, at least in part. His apology to the court and to those affected was also an important matter. She also took into account that on the day in question his Sony Walkman had been stolen from his person.
She then said:
"I appreciate that he had been drinking, although of course that is a matter, really not of mitigation in particular, but it is something I take into account in any event. Although, in...
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