Christopher Lovett v Wigan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart Smith,Lord Justice Birss,Lord Justice Edis |
| Judgment Date | 16 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1631 |
| Docket Number | Case No: CA-2022-001642 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1631
Lord Justice Stuart Smith
Lord Justice Birss
and
Lord Justice Edis
Case No: CA-2022-001642
IN THE COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellant appeared in person by video link
Michael Paget instructed directly by the Respondent
Arfan Khan (instructed by DCK Solicitors) for the Appellant
Tristan Salter (instructed by Devonshires) for the Respondent
Yinka Adedeji (instructed by Citizens Advice Sutton) for the Appellant
Sam Phillips instructed directly by the Respondent
Hearing date: 10 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 16 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Judgment of the court (given by Birss LJ):
This is a judgment of the Court to which we have all contributed.
It deals with three related civil appeals which are all concerned with breaches of orders made pursuant to the Anti-Social Behaviour, Crime and Policing Act 2014. The cases raise related issues. Orders of this kind are often referred to as ASBIs (Anti-Social Behaviour Injunctions). The ASBI system replaced the previous system based on ASBOs (Anti-Social Behaviour Orders). ASBOs were part of the criminal justice system whereas the scheme of the 2014 Act is that ASBIs are orders made by the civil courts, and breaches of those orders are dealt with as part of the jurisdiction to impose penalties for contempt of court.
The appeals were directed to be heard by this court on the same day. Part of the context is a Report by the Civil Justice Council dated July 2020 entitled “Anti-Social Behaviour and the Civil Courts”. The relevance of the CJC Report can be demonstrated by the following passage, at the start of the Section on Penalties for Contempt:
“379. Very early into its work, The Working Party discovered widespread and serious concern about the inconsistency of penalties imposed (which is the correct term as opposed to “sentencing” which occurs only in criminal courts) for breach of orders made under the 2014 Act. Concerns raised by practitioners ranged from judges not considering breaches to be sufficiently serious to warrant action (and thereby undermining the effectiveness of the injunction), through to excessive penalties out of line with what the approach would have been in a criminal court to the substantive conduct behaviour.”
The Report goes on to make a number of recommendations. The report includes at annex 1 a suggested draft guidance document, setting out a scheme of guidance in relation to penalties for contempt for breach of ASBIs. The Civil Procedure Rules Committee considered whether to embark on issuing such sentencing guidelines but decided it was not part of their remit to do so.
Despite the criticism of the term “sentencing” in paragraph 379 of the CJC Report, in preparing this judgment we found that the term is a useful one to use in the civil context and we will use it.
The three cases in summary
Although the case of Christopher Lovett was heard first, given the range of issues raised in that appeal, it is convenient to deal with it after the other two.
Optivo v Hopkins
Gemma Hopkins is a tenant in her home in Carshalton, Surrey. She moved there in 2018 to flee domestic violence. Optivo is the landlord. An order dated 16 March 2020 by Deputy District Judge Tear, amongst other things, forbade Ms Hopkins from engaging in conduct likely to cause nuisance, annoyance alarm or distress to persons in the neighbourhood near her home. Optivo made an application to commit Ms Hopkins for 31 alleged breaches of the injunction, including allegations that Ms Hopkins had herself caused or permitted loud banging noises, shouting, doors slamming which caused alarm or distress to residents neighbours, and also that she and her partner Timothy Kurtner (who does not live at the property) were repeatedly shouting and fighting outside her home. On 29 October 2021 before District Judge Coonan, Ms Hopkins admitted one breach of the injunction and Optivo agreed not to pursue the remaining allegations. The admission was recorded in a recital in this form:
“and Upon the Defendant admitting that on the 10th November 2020 there was shouting outside her property so as to be heard by her neighbours causing them alarm and distress and that was a breach of the injunction order dated 16th March 2020”
DJ Coonan decided to adjourn sentencing for six months. The order adjourning sentencing (to come back to the same judge) also contained a recital in this form:
“and Upon the Court being satisfied that if it had imposed a sentence today it would have imposed a sentence of 28 days imprisonment suspended on the condition of compliance with the injunction order imposed at today's hearing”
[ The reference to “the injunction order imposed at today's hearing” arises because on the same day the injunction was reissued in an amended form.]
The parties returned before DJ Coonan on 1 August 2022. Optivo had produced a statement from Ms Green which contained allegations about Ms Hopkins' recent conduct, however the judge accepted the submission of counsel for Ms Hopkins that this evidence should be excluded. The judge then decided that since there was no evidence from the defendant that she had complied with the injunction in the meantime since 29 October 2021, there was no reason not to impose the penalty which had been considered at the previous hearing. The judge sentenced Ms Hopkins to 28 days imprisonment suspended until 29 April 2023 on condition that she complies with the injunction.
Ms Hopkins appealed by right under s13 of the Administration of Justice Act 1960. The appeal was filed in the County Court at Croydon, transferred to County Court at Central London and then HHJ Luba QC sitting in Central London transferred the appeal to the Court of Appeal under CPR r52.23(1). The two grounds of appeal are (1) that the sentence is immensely excessive and (2) that in sentencing the judge took into account irrelevant information or failed to take into account relevant information.
Network Homes v Smith
Isaac Smith lives in Willesden, North London. He is a tenant of the respondent Network Homes Ltd. He is physically disabled. The Equality Act 2010 Considerations & Proportionality Assessment Form dated June 2021 notes that he spends most of his time in his living room as he is physically disabled, that he is in constant pain and that playing music helps him to manage his quality of life. The Network Holmes anti-social behaviour incident log dated 1 st March 2021 records his neighbours, the Caseys, reporting several incidents of audible music and singing both during the day and in the evening which disturbed their quiet enjoyment of their home. The log includes further later incidents up to 1 st November 2021
Following initial complaints from the neighbours, which included an allegation of a threat of violence, Network Homes applied for an interim injunction. On 31 August 2021 Deputy District Judge Lawrence made an order to run for one year prohibiting Mr Smith from:
“Swearing, shouting, banging, playing amplified sound, or causing any other noise nuisance at the Property, so that it can be heard outside the Property.”
In April 2022 Network Homes applied to commit Mr Smith on the basis of 38 alleged breaches of the order. The court directed the respondent to file an amended, more limited schedule of breaches and the matter was tried before Deputy District Judge Althaus on 11 August 2022, based on a schedule of 10 allegations, nine relating to loud music, sounds, or shouting, and one incident of singing and loud conversations. Mr Smith was represented by counsel at this trial. The judge found nine of the ten allegations proved and made an order committing Mr Smith to prison for 12 weeks, suspended for 12 months.
Mr Smith's appeal was filed at the County Court at Central London and again HHJ Luba QC transferred the appeal to the Court of Appeal. A number of points were taken on this appeal which were not pursued at the oral hearing, including a point about the form in which the committal application had been made, a submission that a Deputy District Judge had no jurisdiction to adjudicate and punish for contempt, an argument about a point on the routes of appeal, and a submission that an order at the hearing to retrospectively dispense with affidavit evidence was unfair and irregular.
Before this court Mr Smith is again represented by counsel, albeit that Mr Khan who appears in this court, did not represent Mr Smith below. Three grounds of appeal were pressed before us. First a submission that the judgment had not been transcribed and placed on the judiciary website at the proper time, contrary to CPR r81.8(8). Related to this was a point, based on an unapproved note of the judgment, that the judge had failed to take into account the significance of Mr Smith's hearing problems. Second, that the judge erred in not considering a possession order against the defendant as an alternative to committal, which was itself disproportionate in the relevant circumstances. Third that the judge was wrong to determine the committal application without determining whether Mr Smith was eligible to apply for legal aid.
Wigan Council v Lovett
The original injunction order under the 2014 Act was made against Christopher Lovett on 9 November 2015. The terms of the original order are not in the bundles but it is clear that, stated broadly, the injunction forbade Mr Lovett from engaging in conduct likely to cause nuisance, annoyance...
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