Lambeth London Borough Council v Howard
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LADY JUSTICE HALE,LORD JUSTICE THORPE |
| Judgment Date | 06 March 2001 |
| Neutral Citation | [2001] EWCA Civ 468 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/00/3207 |
| Date | 06 March 2001 |
[2001] EWCA Civ 468
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Medawar QC)
Royal Courts of Justice
Strand
London WC2
Lord Justice Thorpe
Lord Justice Sedley
Lady Justice Hale
B2/00/3207
MR. D. WATKINSON and MISS B. HARRIS (instructed by Messrs Christian Fisher, London, WC1) appeared on behalf of the Appellant.
MR. A. ARDEN Q.C. and MR. D. KILCOYNE (instructed by the Borough Solicitor, London Borough of Lambeth) appeared on behalf of the Respondent.
This case arises from an outright possession order made by His Honour Judge Medawar QC at the Central London County Court on 22nd September 2000 following a three day hearing. The grounds were the persistent and obsessive harassment by the appellant, Mr. Howard, of his neighbour, Miss Tracey Gabriel, and her young daughter. Robert Walker LJ, on Mr. Howard's oral application for permission to appeal, took the view that there was enough in his application, without in any way being sanguine of its success, to merit its renewal on notice before the full court, with the appeal to follow should permission be granted. One element in the application was the extension of time. Having read all the papers, we enlarged time and granted permission to appeal at the outset of today's hearing.
Mr. Howard's case has today been put lucidly and concisely and, above all, with realism on his behalf by Mr. David Watkinson.
The appellant has a secure tenancy of 7, Arden House in the London Borough of Lambeth. By section 84 of, and Part I of Schedule 2 to, the Housing Act 1985 he may nevertheless, if it is reasonable to do so, be made subject to an outright or suspended possession order on grounds of breach of covenant or of nuisance or annoyance to neighbours or on commission of an arrestable offence at the premises. These are grounds 1 and 2 respectively of the Schedule.
On Judge Medawar's thorough and careful fact findings such grounds were made out. They were made out, in the judge's view, to the extent that they justified not merely a possession order but an outright order; that is to say, one that was not suspended, even on the most stringent terms.
The issue before us, in consequence, which is of great importance to everybody involved, is whether the judge's refusal to suspend his possession order on appropriate terms was wrong.
Mr. Howard became the tenant of 7, Arden House as long ago as 1976. Ten years later Miss Gabriel moved into the adjoining flat, No 8. The flats adjoin in such a way that Miss Gabriel has to pass Mr. Howard's windows in order to enter and leave her flat, and so therefore do her child and any visitors. The reverse is not the case. During 1994, at a time when both were living on their own, the appellant began to pester Miss Gabriel, on the one hand seeking her attention and friendship and on the other hand making complaints about her to the local authority's housing officers when his approaches were rebuffed. This kind of conduct continued intermittently into 1996, when he began following Miss Gabriel into shops and elsewhere and tried to enter her flat against her will. By the summer of that year, however, he was being remorseful and seeking to build a friendship with her. When that did not work, in the autumn he began to make allegations against Miss Gabriel, which the judge found were outrageous and unfounded, to the effect that she was involved in drugs and prostitution. He made allegations about the welfare of her daughter to the head teacher and to Social Services, with the predictable result that these complaints were taken seriously if only for fear of the possible consequences if they were not. The effect upon Miss Gabriel and her daughter can be imagined. Then, by Christmas of 1996 Mr Howard was again seeking friendship and sending a Christmas card.
This on-off conduct continued through 1997. There was a further allegation to the head teacher. Social Services had to become involved. The appellant claimed to be an investigative journalist writing a story for the News of the World. He banged on Miss Gabriel's door and verbally abused her and then left apologetic cards with assurances that he would not be any more trouble.
In August of that year the police finally became involved. They spoke to Mr. Howard, but it did little good. He tended, when he repeated his conduct and the police were called again, to justify himself by making damaging allegations against Miss Gabriel and her daughter. In October 1997 he pushed open her letterbox, which she had tried to secure against him, and tried to talk to her through it. The following day the police once again came to see him. He again responded with allegations of the most insulting and damaging kind about Miss Gabriel. What is more, in attempting to refute things that the police had put to him, towards Christmas of that year he wrote another letter to the child's head teacher, this time raising fresh and equally spurious grounds for questioning the child's welfare.
On 17th December 1997 Mr Howard was arrested, interviewed under caution and charged. He was also granted bail pending trial, and in the 11 months which followed, barring one or two incidents which, though unpleasant, were minor by comparison with what had gone before, he left Miss Gabriel and her daughter alone. This was the single period, therefore, in which, as Mr. Watkinson points out, some form of experiment was able to be conducted as to the appellant's capacity to behave himself and leave his neighbours alone, at least when he knew that the chips were down.
In November 1998 he was convicted under the Protection from Harassment Act 1997, and at the beginning of December was given three months' immediate imprisonment. He had served six weeks by the time, in January 1999, the Crown Court heard his appeal. The Crown Court dismissed the appeal against conviction but allowed his appeal against sentence. He was by then away from the flat and, in view of what happened next and has happened since, has not been allowed to return to live in his flat since that time. For the sentence of imprisonment the Crown Court substituted a three year probation order. It also imposed a restraint order, first of all prohibiting contact with Miss Gabriel and her daughter; secondly, prohibiting any attempt to report anything about them except through his own solicitor and, thirdly, forbidding him to go within 50 yards of Arden House. Because it was not clear what, if anything, was going to be done about the rehousing either of Mr Howard or of Miss Gabriel, the Crown Court allowed the geographical restraint order to be the subject of a future application for variation after an interval of six or nine months. The appellant has been living, we are told, with various friends ever since, but has not had a settled home.
In March 1999 the local authority, knowing of the outcome of the criminal proceedings to date, issued the present proceedings seeking possession of the appellant's flat. The following day the applicant sought a case stated from the Crown Court. In August he applied for variation of the restraining order. That application was adjourned because the Crown Court considered it better that the possession action, scheduled at that time for November 1999, should be heard first. Its decision, it anticipated, would depend at least in part on the county court's decision.
The applicant found himself compelled to apply to the Divisional Court for judicial review of the refusal of the Crown Court to state a case. The application came on 12th April 2000 before the court, presided over by the then Lord Chief Justice, Lord Bingham. The application failed, principally on the ground that it was open to Mr. Howard to go back to the sentencing court for a variation of the restraining order which was the real bone of contention. Lord Bingham indicated that if that were done, there would be at least five matters of which careful consideration would be required by the Crown Court:
"First, that the consequences of the restraining order had been far more severe than was ever contemplated; second, that the applicant had been excluded from his home for 15 months which was much longer than the judge ever envisaged; third, that the applicant faced the prospect of losing the secure tenancy where he had been paying rent during all those 15 months and the prospect of being made homeless; fourth, that the applicant faced the prospect of many months before there would be any hope of resolution of this matter; fifth, that the inability of the applicant to return home prevented him from demonstrating that he can live in harmony with his neighbour."
These of course were not factual conclusions of the Divisional Court. They were a summary of the submissions that might be made in the appellant's favour to the Crown Court in seeking a variation of the restraint order.
The Crown Court on 28th April 2000 heard the application to vary. Having considered the application and considered what the Divisional Court said, it left the restraint order standing. It did so in the knowledge that the local authority was not going to rehouse the applicant since it was by then seeking an outright possession order against him, but it left open the possibility of a further application for variation should Mr. Howard not be evicted by the county court. In giving the Crown Court's decision, His Honour Judge Laurie said this:
"We are quite sure that all her [that is Miss Gabriel's]...
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