Case Number: J01BM492
In The County Court At Birmingham
3 August 2023
Her Honour Judge Emma Kelly
Birmingham City Council
MS HEATH, counsel, appeared on behalf of the Claimant
MR HARRINGTON, solicitor, appeared on behalf of the Defendant
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- The defendant, Ms Kearney, appears before the Court for the determination of the appropriate sentence in respect of her admitted contempt on 21 May 2023. The defendant is represented today, as she has been throughout, by her solicitor, Mr Harrington.
- On 7 October 2022 District Judge Griffiths granted an injunction under the Anti-Social Behaviour, Crime and Policing Act 2014. By that order, he prohibited Ms Kearny, whether by herself or by instructing, encouraging or allowing any other person, from:
(1) entering Station Road, King’s Heath, Birmingham;
(2) using or threatening to use violence, harassing or intimidating Adrian King of 46 Station Road, King’s Heath, Birmingham or Shirley McDonald of 38 West Mead Drive, Birmingham, B14 or any person lawfully present in West Mead Drive; and
(3) from behaving in a manner likely to cause nuisance or noise to any person, by, in particular, but not limited to shouting, screaming, banging or slamming doors, being abusive.
A power of arrest is attached to limbs one and two of the injunction. Both order and the power of arrest were ordered to continue until 23.59pm on 7 October 2024.
- By order dated 24 February 2023 Deputy District Judge O’Connell dispensed with the need for personal service of the injunction and the power of arrest and recorded that both documents were deemed served on 5 December 2022.
- On 22 May 2023 Ms Kearney was arrested pursuant to the power of arrest and produced within 24 hours before District Judge Mantle. At that stage Ms Kearney wished to dispute the allegations and the matter was listed for a trial on 20 June 2023. On the morning of trial, Ms Kearny admitted being in contempt of court as a result of her behaviour on 21 May 2023. The matter was adjourned for sentence at the request of Ms Kearney’s representative to allow time to gather any medical evidence relevant in mitigation. The relisted hearing on 4 July 2023 could not go ahead because Ms Kearney was an inpatient in hospital at that time.
- As to events on 21 May 2023, Ms Kearney accepts that she shouted over her garden fence to her neighbour, Ms Shirley McDonald, the occupier of 38 West Mead Drive, in the following terms: “Stop staring over the fence”, “Who the fuck are you looking at, slag?”, “Fuck off, you cunt”, “Fuck off, you slag”, “She’s a grass”, and “Fucking cunt”. Ms Kearney accepts that her behaviour on that day amounted to a breach of limbs (2) and (3) of the injunction order of District Judge Griffiths. In a statement to the police McDonald reported that the incident caused her to feel alarmed and distressed, such that she had to go back inside her home and immediately contact the police.
Burden and standard of proof
- These are contempt proceedings and thus the Court has to be satisfied of any allegation to the criminal standard; that is, beyond reasonable doubt. In light of the admissions made by Ms Kearney, and having read the witness statements of Ms McDonald and the arresting officer, I am so satisfied to that standard.
Approach to sentencing
- The approach of the Court to sentencing for contempt arising from breaches of Anti-Social Behaviour Injunctions was considered by the Court of Appeal in Lovett v Wigan Borough Council  EWCA Civ 1631. The objectives of sentencing are, in order, to ensure future compliance with the order, punishment and rehabilitation. The Court of Appeal endorsed the approach adopted in the criminal courts of assessing the degree of harm and the degree of culpability, and use of the sentencing guideline template prepared by the Civil Justice Council in their report of July 2020 when considering the appropriate approach to sentencing for breaches of orders made under the 2014 Act. I adopt that approach.
- I agree with the analysis of both the claimant and defendant’s representatives that this is a Culpability B case, being a deliberate breach falling between Culpability A, a very serious breach or persistent serious breaches, and C being a minor breach or breaches. The verbal abuse on that day could be nothing but deliberate and was unpleasant in nature. As to the category of harm, I again agree with the submissions made by the parties that this is a Category 2 case falling between Category 1, which would be very serious harm and distress, and Category 3, little or no harm or distress. The harm occasioned to Ms McDonald fell above the lowest category in circumstances where she was at home in her garden and reported in express terms of feeling anxiety and distress such that she had to go inside and call the police. Adopting the Civil Justice Council matrix as endorsed by the Court of Appeal in Lovett, the starting point for a Culpability B, Category 2 harm case is a one month custodial sentence with a category range from adjourned consideration of sentence to a three-month custodial sentence.
- I turn to consider any aggravating factors. Firstly, Ms McDonald was one of the individuals who was specifically named in the injunction order as someone whom the order was specifically designed to protect. Secondly, the incident occurred when Ms McDonald was at home in her garden; an environment in which she should have been entitled to feel safe. Thirdly, Ms Kearney has a modest amount of previous convictions indicative of previous abusive conduct, namely a conviction from 2019 for assaulting an emergency worker and an older conviction from 2014 for abusive, insulting words and behaviour, which I take very limited account of given its age. In addition, there is a caution for common assault in 2016. By definition, the caution means that she must have accepted her actions at that time.
- There are, however, mitigating factors in this case. This is Ms Kearney’s first breach of the order, which was served in December 2022. Over five months passed before the breach occurred. Furthermore, I take into account Ms Kearney’s poor health. The Court is told that she suffers from chronic pancreatitis and that, in conjunction with her alcoholism, has occasioned two inpatient hospital stays since her arrest. It is apparent that she has very serious issues with alcohol. No written medical evidence has been supplied to the Court but Ms Kearney’s solicitor has spoken to a representative of Change Grow Live, the treatment provider for her addiction. It appears that hat Ms Kearney has not been engaging to any meaningful extent other than a period some two years ago such that she currently has very limited professional support. I take into account her health condition as a mitigating factor.
- Taking that into account the aggravating and mitigating factors, whilst it is appropriate that there be downward movement from the suggested starting point, I am not persuaded that the sentence reduces below the custodial threshold. Before consideration of the question of credit for her admission, the appropriate sentence in respect of the breach on 21 May 2023 is one of 14 days’ imprisonment. Ms Kearney is entitled to credit for her admission. The admission was made on the morning of trial. Ms McDonald was spared the additional anxiety and stress of having to give evidence but she did, nonetheless, have to attend Court for the trial. The appropriate discount to be applied is one of 10%. That would be 1.4 days and, rounding down in Ms Kearney’s favour, reduces the term of imprisonment to one of 12 days.
- The Court has to consider whether or not it is appropriate to suspend the sentence. I say, immediately, that I am going to suspend the sentence. Ms Kearney has strong personal mitigation. That does not excuse her behaviour but it does cast some light on why she behaved as she did on that day. I also consider there is a real prospect of rehabilitation. It is now over two months since the events in question took place and there has been no repetition of the behaviour. I therefore pass a custodial sentence of 12 days, suspended until 23.59pm on 7 October 2024, which is the end date of the injunction, on condition of compliance with the terms of the injunction of District Judge Griffiths on 7 October 2022 or any varied form of that injunction should those terms be varied in the future. It is vitally important that Ms Kearney continue to comply with the terms of the injunction going forwards. Any further breach of the terms of the injunction risks activation of the suspended sentence, in addition to the sentence for any new breach.
- Ms Kearney has a right to appeal this sentence without the need for permission to be obtained. Any appeal can be made to the High Court or the Court of Appeal within 21 days of today. I direct that a transcript of this judgment be obtained at public expense on an expedited basis and the approved transcript be published on the judiciary website.
End of Judgment.