Committal for Contempt of Court: Birmingham City Council -v- King

County CourtCommittal for Contempt of Court

Case Number: J01BM492

In The County Court at Birmingham

7 March 2024

Before:

Her Honour Judge Emma Kelly

Between:

Birmingham City Council

-v-

Mr Adrian King

APPROVED JUDGMENT

HER HONOUR JUDGE EMMA KELLY:

  1. Mr King appears before the court in respect of matters of contempt arising from allegations that he has breached a final injunction that was granted under the Anti Social Behaviour, Crime and Policing Act 2014 by DJ Griffiths on 7 October 2022. I am grateful to counsel for the claimant, and solicitor for Mr King, for their helpful submissions.
  2. Mr King first appeared before the court last Friday, 1 March, following the exercise by the police of a power of arrest attached to the injunction. On that occasion, and despite the court’s encouragement that he seek legal advice, Mr King declined to be represented. He has however since instructed Mr Harrington to advise and represent him.
  3. Mr King has now made written admissions to eight breaches of the injunction. Each of those breaches is factually very similar, and relates to his attendance at his partner’s property at 40 West Mead Drive in Birmingham. He accepts attending at the property in breach of paragraph 1 of the injunction on 19 February, 20 February, 21 February, two occasions on 22 February, two occasions on 25 February, and on 1 March 2024.
  4. These are civil proceedings, but the claimant must prove any breach to the criminal standard of proof. Having considered the signed written admissions, and having had the opportunity to view the police evidence and the door cam video footage that is provided in support of seven of the eight breaches, I am satisfied that the claimant has proved the breaches to the criminal standard given that paragraph 1 of the order of DJ Griffiths prohibited Mr King from entering West Mead Drive. The other limbs of the injunction, namely a prohibition on using or threatening to use violence or harassing or intimidating Vanessa Kearney of 40 West Mead Drive are not engaged. No issue is taken with service of the injunction and Mr King accepts that he had been personally served with a copy of the order prior to these events taking place.
  5. It falls to this court to determine the appropriate penalty for the breaches. There is something of a history to these proceedings. Mr King has been before the court in relation to previous matters of contempt. On 5 December 2022 he was fined for a contempt relating to events on 30 November 2022 when he visited Ms Kearney’s property in breach of paragraph 1 of the order. On that occasion he was fined the sum of £50.
  6. Mr King was again before the court on 12 December 2023 for two breaches; one on 22 August 2023 and one on 15 October 2023. On that occasion no penalty was imposed because, by the date of sentence, Mr King had served the equivalent of a twelve-day custodial sentence, having been in custody for six days following his remand in custody on the exercise of the power of arrest. The order from 12 December 2023 recorded that the appropriate sentence, if Mr King had not spent time on remand in custody. would have been one of fourteen days’ imprisonment suspended on condition of compliance with the injunction.
  7. Mr King was again before the court as recently as 9 February 2024. On that occasion HHJ Najib sentenced Mr King to eighteen days’ imprisonment for a breach occurring on 8 February 2024.
  8. All of the previous breaches, in common with the breaches before the court today, have involved Mr King breaching paragraph 1 of the order, and attending Ms Kearney’s property.
  9. In determining the appropriate sentence, the court has to bear in mind the objectives of the sentencing exercise in civil contempt proceedings. Lovett v Wigan Borough Council [2022] EWCA Civ 1631 sets out those objectives. They are, in the following order:
    • To secure future compliance with the order.
    • Punishment.
    • Rehabilitation.
  10. Adopting the guidance in Lovett v Wigan Borough Council, the court considers the sentencing matrix contained in Annex 1 to the Civil Justice Council’s report of 2020.
  11. The claimant’s submission is that these breaches fall within culpability A, being high culpability, on the basis of them being persistent serious breaches, and that they fall to be categorised as category harm 2.
  12. The defendant submits that the matter should be categorised either at the bottom of culpability A or the top of culpability B, in circumstances where, although eight breaches have to be viewed as persistent, they are not in themselves serious breaches given each involved mere presence without any antisocial behaviour. The defendant agrees these are category 2 harm.
  13. In my judgment culpability falls to be properly be assessed at the top end of category B. The fact of eight breaches within such a short timeframe self evidently means that there is persistence as to this conduct. I am not however persuaded that they comfortably fall within culpability A, in circumstances where, as is submitted on the defendant’s behalf, there was no anti-social behaviour occasioned on any of these occasions.
  14. As to the category of harm, seven of the incidents were observed by the door cam footage of the neighbour, who contacted the police. The neighbour, who has been a key witness for the claimant in the application for the injunction against both Mr King and Ms Kearney, no doubt suffered some distress given that she felt it appropriate to call the police. However, there is no evidence of very serious harm or distress caused by Mr King’s presence. Harm falls in category 2, if anything to the lower end of that category.
  15. A category 2 harm, culpability B matter has a starting point of one month’s imprisonment, with a category range of adjourned consideration to three months’ imprisonment.
  16. The court has to bear in mind that Mr King is to be sentenced for eight separate breaches. I propose to assess Mr King’s cumulative culpability, and pass concurrent sentences on each, rather than assessing each individual contempt and then reducing for totality.
  17. The court has to take into account any aggravating or mitigating features. There are aggravating matters in this case. Mr King is in the operational period of a criminal suspended sentence that was passed on 3 August 2022 for assaulting an emergency worker, and restricting or obstructing a police constable. He received fourteen weeks’ term of imprisonment suspended for two years.
  18. There have been previous breaches of the injunction. I do not take that into account as an aggravating factor as I have taken into account persistence when assessing the culpability as being at the top of category B and it is important not to double count the effect of that. However, the fact that these breaches occurred only a very short period of time after Judge Najib passed a sentence of eighteen days’ imprisonment on 9 February 2024. Mr King would have served half of that period of time in custody albeit he may have been released a day or two earlier to take account of the prisons not releasing prisoners from custody over the weekend period. The first of the current series of breaches occurred on 19 February, therefore only ten days after Mr King was before Judge Najib. All of the eight breaches, save the final one on 1 March, therefore fell within the eighteen-day term that Judge Najib passed. The rapidity of the repeat behaviour is an aggravating feature.
  19. There are however mitigating features in this case. Mr King appears before the court as a rather sad individual. He is aged 58 years old and quite frankly of an age where he should know better. He is in poor health. I have been told of a number of serious health conditions he suffers from including alcoholism, having no sight in one eye, having sustained a serious back injury in 2013, and suffering from poor mental health with anxiety and depression.
  20. It was submitted on behalf of Mr King, and I accept, that he attended his partner’s property on each of the occasions out of a misguided view that had to care for her as she had been unwell and had lost weight. As has been reflected in the categorisation of the harm, there was no anti-social behaviour occasioned when he went to the property.
  21. However, standing back and assessing the cumulative culpability and noting the sheer number of breaches the court has to sentence for, the eight breaches are so serious that they pass the custody threshold. Neither adjourned consideration or a financial penalty are appropriate. The appropriate starting point assessing the cumulative culpability, prior to consideration of credit for admissions, would have been a period of eight weeks or fifty-six days in custody. Mr King is entitled to maximum credit for his admissions which have been made at the first opportunity after being served with the evidence and having had an opportunity to take legal advice. Rounding down in Mr King’s favour that reduces the fifty-six days to thirty-seven days.
  22. Mr King has been on remand in custody for the past six days. That equates to a custodial sentence of twelve days. Unlike in the criminal courts, the prisons cannot take into account time spent on remand when calculating the date of release for a contempt sentence. Therefore, twelve days needs to be manually deducted today reducing the term of imprisonment to twenty-five days.
  23. The court has to consider whether it is appropriate to suspend that sentence. It is prayed in aid on Mr King’s behalf that suspension is something that the court could consider because the threat of activation of the sentence may provide a greater incentive to Mr King to comply with the terms of the order. I am mindful that, certainly on first breaches for contempt in the context of anti-social behaviour injunctions, that the courts often suspend a sentence given that the court’s primary objective, when sentencing for contempt, is to secure future compliance with the order. However, in Mr King’s case, he now appears for what are his fifth to twelfth breaches of the injunction. It is no longer appropriate to suspend and I am not satisfied that there is a realistic prospect of rehabilitation should the sentence be suspended. The sentence on each breach will therefore be twenty-five days’ imprisonment concurrent on each.
  24. The defendant has a right of appeal against the committal order. Any appeal lies to the Court of Appeal, Civil Division, to be lodged within 21 days of today.
  25. The claimant has made an application for its costs. In circumstances where the defendant is receiving an immediate custodial sentence, and is of incredibly modest means in any event, I am not going to make a costs order in this instance. It seems to me there is no realistic prospect that Mr King is going to be in a position to make payment.
  26. I very much hope that the probation support that Mr King appears to have received fairly recently following his criminal suspended sentence will continue and that efforts will be made to find him alternative suitable accommodation as soon as he is released from custody.
  27. I direct that there be a transcript of this judgment prepared at public expense on an expedited basis, which will be published on the judiciary website in due court.