Christie v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,Lord Justice Underhill |
| Judgment Date | 14 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1339 |
| Date | 14 December 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2016/1701 |
[2016] EWCA Civ 1339
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE MCKENNA)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Hallett
Lord Justice Underhill
B2/2016/1701
Mr R de Mello (instructed by McGrath Solicitors) appeared on behalf of the Appellant
Mr J Manning and Ms A Richardson (instructed by Birmingham CC Legal and Democratic Services) appeared on behalf of the Respondent
Introduction
The Respondent, the Birmingham City Council, applied to the County Court for a gang injunction against the Appellant and others under section 34 of the Policing and Crime Act 2009 ("the Act"). The trial of their application has now been fixed for January 2017. On 15 February 2016, at a time when the trial date was unknown, the Birmingham County Court granted the Respondent an interim gang injunction, with a power of arrest, pursuant to section 40 of the Act, to prevent gang related violence. On 17 February 2016 the interim injunction was served on the Appellant.
The terms of the injunction prohibited the Appellant from being in possession of any controlled drugs, from associating with named individuals and from entering specified places. The prohibition extended to All Saints' Street and Lodge Road, Birmingham. The order was to continue 'until further order' unless it was varied or discharged. Either party could apply to vary or discharge.
On 25 February 2016 police officers found the Appellant in possession of a small amount of cannabis in his flat in Yardley Road, Birmingham. On 16 March 2016 at about 5.30 pm in the afternoon, a police officer claimed to have seen the Appellant driving a blue Citroen motor car which was in stationary traffic in the prohibited area of All Saints' Street. On 18 March 2016 the Respondent applied to commit the Appellant for breaching the terms of the interim injunction by possession of the cannabis and by being in a prohibited area.
On 22 March 2016 His Honour Judge McKenna held a hearing of the application to commit. The Appellant accepted the first breach, but denied the second. Judge McKenna heard evidence from the police officer concerned and from the Appellant himself. At the conclusion of the trial, the judge found the breach was proved to the criminal standard. He ordered that the Appellant be committed for contempt to prison for a total period of 28 days for the first breach and 56 days for the second breach, the two orders to run concurrently. The order was suspended until "expiry of the current injunction or any further order and will not be put in force if during that time the contempt nor complies with the injunction order dated the 15th February 2016."
Grounds of Appeal
Mr de Mello on behalf of the Appellant advances three grounds of appeal. The first ground is based on the terms of the committal order and has what he described as four limbs:
The period of suspension should not exceed two years.
The period of suspension should be for a fixed period.
In the alternative, it is only in exceptional cases that a period of suspension could exceed two years.
On the facts of this case, it was inappropriate to make the order in the terms made.
The relevant statutory provision as far as contempt of court is concerned is section 14(1) of the Contempt of Court Act 1981. It provides that:
a. "In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal, the committal shall (without prejudice to the power of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court, or one month in the case of committal by an inferior court."
Mr de Mello invited us to construe the word "committal" to mean not only the term of imprisonment as determined by the court, but also the period of suspension, so that a committal order must be for a fixed term of no more than two years' imprisonment and the period of suspension should be for no more than two years.
He invited us to note that the limitations on section 14 (1) committals is consistent with the provisions in the Policing and Act itself so that the main injunction granted under section 34 cannot last more than two years. Section 36(2) reads as follows:
a. "The injunction may not include a prohibition or requirement that has effect after the end of the period of 2 years beginning with the day on which the injunction is granted."
CPR Rule 81.29 confirms the inherent power to suspend any committal order for such period or on such terms as the court specifies but, Mr de Mello observed, does not in any way attempt to address or in any way limit the provisions of section 14(1) of the Contempt of Court Act.
Mr de Mello placed reliance on passages in the short unreasoned decision of this court in Pidduck v Molloy [1992] 2 FLR 202 and in the judgment of Beatson LJ in R (James) v Governor of Birmingham Prison [2015] 1 WLR 4210 at paragraph 35 which he understood to mean that for a suspended period of imprisonment for breach of an injunction to be valid, both the period of imprisonment and the period of suspension must be defined. He accepted that the court in James was not considering the issue that confronts us. The issue for them was whether or not credit should be given for time spent on remand where imprisonment has been imposed for a contempt of court.
He also accepted that the court in James was not referred to the decision in Griffin v Griffin [2000] 2 FLR 44. In Griffin Hale LJ, (as she then was), with whom Simon Brown LJ (as he then was) agreed, rejected...
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