Roland Douherty v The Chief Constable of Essex Police
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies DBE,Lord Justice Green |
| Judgment Date | 30 January 2019 |
| Neutral Citation | [2019] EWCA Civ 55 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2018/2707 |
| Date | 30 January 2019 |
[2019] EWCA Civ 55
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY AND FAMILY COURT
HHJ MURFIT
E00CM832
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Green
and
Lady Justice Nicola Davies DBE
Case No: B2/2018/2707
Stephen Fidler (Solicitor Advocate) (instructed by Stephen Fidler & Co) for the Appellant
Thom Dyke (instructed by Essex Police Legal Department) for the Respondent
Hearing date: 22 January 2019
Approved Judgment
This is an appeal as of right pursuant to section 13 of the Administration of Justice Act 1960 (“the 1960 Act”) from the order made by HHJ Murfit sitting in the County Court at Chelmsford on 2 October 2018 committing the appellant to prison for 28 days suspended for a period of 12 months for breach of an injunction granted by HHJ Lochrane on 25 September 2018.
Background
By an application dated 13 September 2018 the respondent applied to Chelmsford County Court for a “Gang Injunction” pursuant to section 34 of the Policing and Crime Act 2009 in respect of the appellant and four other persons. The application was supported by a police witness statement which identified the grounds for asserting that the appellant and others had engaged in, encouraged or assisted, gang-related violence and drug dealing activity and the need for each to be made subject to an injunction. The appellant was not legally represented at the September hearing. He arrived at court after the injunction had been granted. The appellant was invited by the judge to make representations, this he did, however the judge confirmed the terms of the order he had previously made.
The order contains no less than 26 conditions, some of which are broad in their drafting which does not assist interpretation nor understanding of the ambit of the relevant condition. They include the following:
“2. Not to Enter Grays Town Park…
3. Not to Enter Grays Town Centre…
…
7. (Not to) Congregate, join or remain in a public place in a group of two or more (with one being himself) where the group is behaving in a manner causing or likely to cause any person to feel intimidated or fear for their safety.
…
9. (Not to) Be in possession of any knife or bladed article irrespective of length of blade in a public place (no matter what type of knife).
10. (Not to) Be in possession of any Controlled Drugs or paraphernalia used to possess, sell or manufacture controlled drugs i.e. cannabis, grinders, deal bags.
…
13. (Not to) Wear any article of clothing with an attached hood (whether detachable or not) in a public place or a place to which the public have access unless in inclement weather i.e. raining.
14. (Not to) Wear any article or item of clothing (for example a hood, scarf or balaclava) covering his face or any part of his face in a public place or a place to which the public have access unless in inclement weather i.e. raining.
…
17. (Not to) Own, use or have with him any mobile telephone or telephone SIM card the phone number and IMEI number for which has not been disclosed to the Chief Constable of Essex Police or appropriate Police Force for the area in which he resides.
18. (Not to) Fail to notify the Chief Constable of Essex Police or appropriate Police Force for the area in which he resides immediately or as soon as reasonably practicable with any change or proposed change to his mobile phone number(s)…”
The order contained a provision which permitted the appellant to enter Grays Town Centre for the purpose of attending college with the proviso that he was to leave within a specified time.
On 1 October 2018 at 18:30 hours DC Phillips was on duty in Grays Town Centre when he saw the appellant in the company of two males. The appellant was wearing a hooded top underneath a jacket which also had a hood. DC Phillips stopped the appellant and asked him what he was doing. The appellant said that he had finished college at 17:00 hours. DC Phillips thought that it was unreasonable for the appellant to be in the area 90 minutes after he had finished college. He arrested the appellant for breaching conditions 3 and 14 of the injunction.
The appellant was taken to Grays Police Station, he was strip searched and a lock knife was found concealed in his waistband. A quantity of cannabis in a small bag and two other deal bags were found in his possession. DC Phillips further arrested and cautioned the appellant for possession of an offensive weapon and possession of cannabis. The appellant was also found to be in possession of two mobile phones. Contrary to conditions 17 and 18 of the injunction, the appellant had not informed the police of his use of these items.
At the police station the appellant was given access to independent legal advice and was interviewed under caution by DC Phillips in the company of his solicitor at 21:10 hours. The solicitor was Christopher Holt of THB Solicitors. During the interview the appellant admitted to being in possession of the knife and the cannabis. He was subsequently charged with possession of a bladed article in a public place and possession of a Class B controlled drug. On 12 November 2018 the appellant attended Basildon Magistrates' Court in respect of the criminal charges and entered a guilty plea to the knife offence. The cannabis charge was sent to the Crown Court. Subsequent to this the CPS made the decision not to proceed with the cannabis charge.
An email and statement from Christopher Holt have been admitted into evidence by the court. Mr Holt confirms that at the police interview on 1 October 2018 the appellant was questioned in respect of the criminal offences. Mr Holt was aware of the alleged breaches of a court order, no questions were asked in the interview about the alleged breaches. Following the interview the police confirmed that the appellant would be charged with the two criminal offences. He was granted police bail in respect of the criminal matters but was detained in custody overnight to appear at Chelmsford County Court on 2 October 2018 in relation to the breach of the court order. Mr Holt states:
“I did not arrange representation for Mr Douherty at Chelmsford County Court on 2 October 2018, as I was under the impression that these proceedings were a civil matter, and not a criminal matter, and my firm does not have a civil contract in place with the LAA. I was informed by the police that the court order obtained at Chelmsford County Court was a standalone injunction. Under the circumstances, I did not believe that a breach of the Order would attract public funding at such short notice under any ‘tolerance’ pursuant to the Criminal Contract, and as such did not arrange representation on 2 October 2018.”
In his witness statement prepared for these proceedings the appellant states that he had expected the duty solicitor, i.e. Mr Holt, to arrange for him to be represented in the county court especially as he had signed legal aid forms. His statement continues:
“3. At no stage was I told by the solicitor that I would not be represented in the county court, especially as I thought that this was a criminal matter and the police kept me in custody overnight. I have never been in custody overnight before and am not familiar with the court system. I am aged 18 years old. At the time of my arrest I had no previous convictions.
4. When I arrived at Chelmsford County Court I was surprised that there was no legal representation for me and the only solicitor that approached me was Fiona Philpott who said that she was representing the Essex Police. She did not provide to me any copy statements or application but rather they were only in front of me when I went into the witness box. I did not have the opportunity of reading them of considering them in advance. I now understand from my solicitor that it is surprising that I was not given any paper work in advance.
5. I was approached by Fiona Philpott who asked me whether I was represented. I told her that there was no solicitor present and she asked whether I wished to be represented. I indicated that if there was no solicitor I would have to go ahead on my own.
6. At no stage did Fiona Philpott explain to me that I could have the benefit of legal aid and that it would mean adjourning the case. In fact, when the Judge explained to me the position about legal aid, I felt that I had no choice but to proceed. I really felt that I was being placed in an awkward position in having to represent myself. I am not good at explaining myself and would certainly have wished to have had a solicitor speak to me and explain my rights.
7. I should also say that I was not aware that I did not have to give evidence, and this was not explained to me at any stage by Fiona Philpott or the Judge. Having been in custody overnight, I felt under some pressure and, have to say, that if I am asked by a Judge to do something, such as come into the witness box and give evidence, I feel under an obligation to comply.”
Fiona Philpott is a solicitor employed by the respondent and had conduct of the application made by the Chief Constable for the injunction on 25 September 2018 by HHJ Lochrane. In a statement admitted into evidence by this court, she states that the appellant was handed a written copy of the order before he left court on 25 September 2018. On 2 October Ms Philpott was notified by the county court of the fact that the appellant had been arrested for breach of the injunction and was on his way to court. Ms Philpott made enquiries and spoke to Mr Holt. Mr Holt informed her that he would not be representing the appellant as legal aid was not available. Ms Philpott believed legal aid was available. Mr Holt maintained that his firm did not have the relevant legal aid contract.
Ms Philpott prepared a...
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