Cheshire East Borough Council v Michael Maloney
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 04 May 2021 |
| Neutral Citation | [2021] EWHC 1156 (QB) |
| Date | 04 May 2021 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2020-002823 |
[2021] EWHC 1156 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Manchester Crown Court
Crown Square, Manchester, M3 3FL.
THE HON. Mr Justice Turner
Case No: QB-2020-002823
Mr Jack Smyth (instructed by Cheshire East Borough Council) for the Claimant
Mr Timothy Jones (instructed by Community Law Practice) for the Defendant
Hearing dates: 9, 10, 11 February 2021 and 4 March 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Turner
On 16 February this year I found the defendant guilty of contempt of court in respect of ten distinct allegations relating to his breach of planning injunctions concerning development and works on agricultural land adjacent to Broadoak Lane, Mobberley, Cheshire.
The details are reported at Cheshire East Borough Council v Maloney [2021] EWHC 350.
For reasons primarily relating to the impact of the pandemic, it has not been possible to fix a date for this sentencing hearing until now.
The court's usual practice is for committal hearings to be held as a physical hearing in a courtroom. However, in light of the pandemic some flexibility needs to be afforded to the parties. Thus Mr Maloney, who is still in custody, again appeared via video link and I gave permission to the parties' representatives to appear remotely. Open justice has been preserved by affording remote access to about seventy interested organisations and members of the local community.
The Practice Direction on Contempt of Court requires me now to state in open court my main conclusions. For the reasons set out in my earlier judgment I have concluded that Mr Maloney is guilty of contempt of court, that having been proven to the criminal standard in each case.
The general nature of his contempts are set out in my judgment at paragraphs 30 to 41 to be found at: https://www.bailii.org/ew/cases/EWHC/ QB/2021/350.html a copy of which is appended to this judgment.
On the issue of sentence for contempt, I bear in mind the following features:
(i) Mr Maloney's repeated disobedience of the orders of this Court persisted over a period of weeks;
(ii) His breaches were calculated and planned;
(iii) His conduct has given rise to considerable and wholly foreseeable concern and anxiety on the part of the residents of the area in which his breaches occurred;
(iv) He has shown little remorse and has lost the credit to which he would have been entitled had he admitted any or all of the allegations which I have found to have been proved against him.
I am entirely satisfied that the seriousness of Mr Maloney's contempts are such that no sentence other than a committal to prison would be adequate. The appropriate total term is one of eight months.
However, there are circumstance which allow me to suspend the operation of the order. They are:
(i) The suspension of the committal will provide a strong incentive to Mr Maloney to abide by the terms of the injunction which I have ordered to take effect from today a copy of which is also appended to this judgment;
(ii) Mr Maloney is already in prison having been recalled on licence in respect of an unrelated offence. The date upon which he will be released is a matter of speculation. By the operation of section 225 of the Sentencing Act 2020 any sentence passed by this court cannot lawfully be passed so as to run from the date upon which Mr Maloney would otherwise be released. In this respect, reference may be made to R v Costello [2011] 1 W.L.R. 638. It follows that an immediate sentence of imprisonment would inevitably involve an unsatisfactory element of random impact depending on the wholly unrelated contingency of his notional release date relating to the offence in respect of which his licence was revoked;
(iii) I do not overlook the additional hardships which the COVID-19 restrictions have placed upon those in custody;
(iv) I bear in mind the content of the witness statement of Mr Maloney's wife, Sheila, as to the impact of his incarceration upon his family and employees.
It follows that the sentence imposed is a suspended committal order of eight months imprisonment in respect of each contempt to run concurrently. The condition of suspension is that Mr Maloney will obey the terms of the injunction granted over the next two years. If within that period he is in breach of those terms or any of them the committal order is liable to be activated.
I award the claimants their costs of the application for an injunction to be assessed if not agreed. The defendant will make an interim payment of £25,000 on account of costs within 28 days.
I direct that details of the matters I have just set out shall be provided to the national media and the Judicial Office pursuant to para. 13.4 of the Practice Direction: Committal for Contempt — Open Court [2015] 1 WLR 2195.
I direct that copies of the judgment shall then be provided to the parties and the national media via the Copy Direct Service. Copies shall also be supplied to BAILII and to the Judicial Office at judicialwebupdates@judiciary.gsi.gov.uk for publication on their website as soon as reasonably practicable.
APPENDED JUDGMENT AS CITED IN PARAGRAPH 6 ABOVE
Neutral Citation Number: [2021] EWHC 350 (QB)
Case No: QB-2020-002823
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice,
Strand, WC2A 2LL
Date: 16/02/2021
Before:
THE HON. MR JUSTICE TURNERBetween:
CHESHIRE EAST BOROUGH COUNCIL
and
(1) MR MICHAEL MALONEY
(2) MRS SHEILA MALONEY
(3) MR MICHAEL MALONEY SENIOR
(4) MS BRIDGET MALONEY
(5) MS HELEN LISA MALONEY
(6) PERSONS UNKNOWN DEPOSITING HARDCORE, BRINGING CARAVANS AND RESIDENTIALLY OCCUPYING THE LAND ON THE SOUTH SIDE OF BROADOAK LANE, MOBBERLEY, KNUTSFORD, CHESHIRE
(7) TOTAL PLANT HIRE
(8) MR THOMAS HALIGAN
(9) W DOHERTY & SONS LTD
(10) MR PAUL RENNIE
(11) MR GLYN PARR
(12) MR ADRIAN DRAPER
Mr Jack Smyth (instructed by Cheshire East Borough Council) for the Claimant
Mr Timothy Jones (instructed by Community Law Practice) for the Defendant
Hearing dates: Tuesday 9 February, Wednesday 10 February and Thursday 11 February 2021
The Hon.INTRODUCTION
For those unacquainted with the area, Mobberley is a village in an affluent area of Cheshire East. Many of the larger houses there command prices well into seven figures. As one might expect, members of the local community are keen to preserve the character of the neighbourhood. This case is about what happened when an extended family of Irish Travellers decided to make it their home.
BACKGROUND
Broadoak Lane runs through a predominantly agricultural landscape about half a mile to the west of Mobberley. It lies in the Cheshire East Green Belt. In August 2019, Mr Michael Maloney, the first defendant and an Irish traveller, purchased an area of paddock land immediately adjacent to the lane and, about a year later, set about gradually populating it with his extended family members many of whom now live in a total of thirteen caravans which had been brought onto the site in quick succession. The word disappointment does not fully reflect the strength of local antipathy to this development.
In response, the claimant, to which I will refer henceforth as the council, obtained ex parte interim injunctive relief from Farby J on 13 August 2020 and, inter partes, from Cockerill J on 1 September 2020.
Two matters now arise for my determination. The first relates to allegations that Mr Maloney is in contempt of court having acted in breach of the terms of both of the interim injunctions to which I have referred. The second relates to the terms of any injunction to apply in the longer term. Although these are two jurisprudentially distinct issues, they each arise from the background circumstances of the case. The parties have agreed that they could appropriately be dealt with in the same hearing.
As it happens, Mr Maloney has been held in custody since the end of last month but his Article 6 rights to a fair trial have been preserved by a live video link from the Civil Justice Centre here in Manchester to the Magistrates' Court across the road. The reason Mr Maloney finds himself in prison has nothing to do with this case. He was on licence following his release from custody with respect to other matters and he has been returned to prison following allegations that he has acted in breach of the terms of his licence. These allegations remain unproven. Suffice it to say that I draw no adverse conclusions concerning either his credibility or propensities from these matters.
It is to be noted that the committal proceedings were originally brought against no fewer than twelve defendants of whom Mr Maloney was the first. The cases against the other defendants had all been resolved in one way or another by the time the hearing before me had come to a conclusion and no purpose would be served by rehearsing here the circumstances in which such mutual accommodation had been achieved.
I now propose to address the law relating to each of the two issues of contempt and injunctive relief before making the necessary findings of fact and, finally, applying the former to the latter.
CONTEMPT OF COURT
The burden of proof in relation to every allegation of contempt lies squarely on the shoulders of the council and the standard of proof is proof beyond reasonable doubt.
A contempt can be proven in relation to breaches of an injunction before the defendant was personally served with the injunction if he was aware of the terms and effect of the injunction and the lack of formal...
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