October 30, 2023

Committal for Contempt of Court: Birmingham Women’s & Children’s Hospital NHS Foundation Trust -v- Jones

County Court Committal for Contempt of Court

Case Number: J01BM080

In The County Court At Birmingham

30 October 2023

Before:
Her Honour Judge Truman

Between:
Birmingham Women’s & Children’s Hospital NHS Foundation Trust
& Anor
-v-
Jones

Committal for Contempt of Court

MR R ALOMO appeared on behalf of the Claimants
THE RESPONDENT did not attend

JUDGMENT
(Approved)

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HHJ TRUMAN:

This matter concerns an application for committal for contempt of court made by Birmingham Women’s and Children’s Hospital NHS Foundation Trust and Birmingham Solihull Mental Health Trust.
The background to the matter is that the defendant was previously a patient at the first claimant’s hospital. In July 2021, the defendant called the first claimant asking for his old paper medical records. It appears that the hospital were unable to locate them. That is clearly a highly unsatisfactory state of affairs.
However, despite the claimant telling the defendant that it could not locate the records, it is the claimant’s case that he has persistently contacted the claimant and has been abusive and threatening on occasions. He attended at the first and second claimants’ site and there were threats made to visitors and staff, and property damage.
As a result, the claimants applied for an injunction against the defendant under section 3 of the Protection from Harassment Act 1977. This was granted on 1 July 2022.
Under the terms of that order, the defendant was forbidden from attending the sites of Birmingham Children’s Hospital, based at Printing House and Whittall Street, or within 10 feet of those buildings as shown within the red boundary of an attached map. He was also forbidden from attending the site of the Uffculme Centre, and Parkview Clinic on Queensbridge Road, as shown within the red boundary of the attached map. He was forbidden from throwing items onto those two sites, and he was forbidden from verbally abusing, threatening or intimidating or harassing any member of staff, contractor, employee, patient or visitor at any of the sites.
The claimants felt that the defendant had breached that injunction on a number of occasions thereafter, and made an application for his committal due to contempt of court by an application dated 16 November 2022. That application was supported by a number of witness statements. Unfortunately, the evidence presented was essentially hearsay; there was no direct evidence given by any deponent that it definitely was the defendant who had committed various acts in breach of the injunction. HHJ Murch dismissed the application in consequence, presumably because he could not be satisfied beyond reasonable doubt that the defendant was indeed in breach.
A fresh application for contempt of court was made that had a number of witness statements in support. The matter originally came before HHJ Boora on 23 December 2023. He adjourned the matter to 24 January 2023. The defendant had not attended, and there were concerns as to the defendant’s fitness to plead in connected criminal proceedings. At the hearing on 24 January 2023, the defendant again did not attend. The Court was informed that the defendant was subject to criminal proceedings arising out of allegations that he caused criminal damage to the property of the claimants, and that within those proceedings an issue had been raised at to the defendant’s fitness to plead.
As a consequence of this, directions had been made in the criminal proceedings for the obtaining of psychiatric reports on his fitness to plead. Those reports had not yet been received. A bench warrant was issued by the Court to secure the defendant’s attendance at the next hearing, which was listed for 2 May 2023. That came back before HHJ Ingram, and she adjourned the matter to August 2023. The injunction had been due to expire on 1 June, and she extended it until 31 October 2023, and again issued a bench warrant to secure the defendant’s attendance at court.
The psychiatric reports obtained within the criminal proceedings were subsequently received. The report confirmed that the defendant had initially been unfit to plead in the criminal proceedings but had since become fit to plead. The matter came before me in August 2023.
This Court runs a scheme whereby a number of solicitors’ firms are willing to give assistance to persons in situations such as this. Harringtons Solicitors agreed to attend to give the defendant assistance. The legal representative requested an adjournment to enable him to get proper instructions and to respond to the application for a committal order.
It seemed to me that the fundamental difficulty that the claimants complained of were the nature and number of telephone calls allegedly being made to them. I extended the injunction to prohibit the defendant from making telephone calls to any member of staff, contractor or employee of the Children’s Hospital. I made it plain that he could still write to the hospital, and that, if he had legal advisers, they could contact the claimants by any appropriate method.
Unfortunately, a problem then arose with the defendant’s legal representation. It appears that the solicitor who had witnessed the claimant’s affidavits had a very similar (but not exactly the same) name as a person within the defendant’s solicitors’ firm. The defendant apparently would not accept that the two persons were different. This caused difficulties between him and his solicitors, and the solicitors had to withdraw. When the Court was notified about this, I asked the court staff to write to the defendant. The letter from the Court said, “The Court understands that Harringtons Solicitors are no longer able to assist you. In view of the importance of the hearing on 9 October 2023, the Court strongly urges you to promptly seek alternative legal representation. The Court understands you have been provided with a list of other solicitors’ firms who may be able to help you”. I was anxious to ensure that, if possible, the defendant had the benefit of legal assistance.
The defendant has since written to the Court, in practical terms, saying that he preferred to represent himself because he did not trust the assistance that he had received up to date. He did not appear to appreciate that Harringtons had come forward to represent him when the Court had rung around the solicitors to see if someone would assist, and he viewed it as highly suspicious that they had apparently come forward of their own volition to give him assistance.
On 6 October 2023, there was a hearing before Recorder Gamble. The defendant did not attend. The claimant’s witnesses also did not attend, having had concerns about their safety, given what they perceived about the defendant’s behaviour. The claimants requested an adjournment of the hearing to enable consideration of an application for special measures. That application was duly granted.
The matter came before Recorder Kholi on 16 October 2023, when again the defendant did not attend and was not represented. Representations were made on behalf of the claimant. The Recorder felt it was appropriate to grant special measures under which the claimant’s witnesses would give their oral evidence from behind a screen, that they would have a separate waiting area from the defendant, that they would be brought into court separately, and the defendant was to submit a list of his cross-examination questions to the trial judge in advance.
The claimants had requested that their evidence be given via video link, perhaps from the offices of the claimants’ solicitors, and that they should not be visible to the defendant when they gave their evidence.
The final hearing has come before me today. The defendant has not attended and is not represented. I have had a number of witness statements regarding service by a process server, which confirms service of such matters as the order I made in August 2023, which specifically included notification of the fact that the committal application would be adjourned to 9 October 2023. The solicitors for the defendant had confirmed that Mr Jones had indeed been supplied with a list of solicitors prepared to undertake this type of work. He obviously had the court letter sent to him as well, strongly urging him to take legal representation.
I am satisfied with regard to service of the order made in August 2023. The process server says that he attended at the defendant’s home address. He spoke with the defendant via an upstairs window. He had noted that the defendant was particularly abusive and would not come downstairs to meet with him. He therefore informed the defendant that he had brought the order to his attention and would affect service by inserting the same, in a sealed, addressed envelope, through the letterbox at the address, which the process server duly did.
Mr Jones was present in court when I made the order in any event, but I am satisfied from the witness statement of the process server that there was formal service of that order containing the date of the next hearing, being 9 October. I also have a statement of service with regard to the order of Recorder Gamble, under which the hearing of 9 October 2023 was adjourned to today’s date. The process server says that he attended the defendant’s address but was unable to speak with anyone, that he inserted a copy of the order, contained in a sealed, addressed envelope, through the letterbox at the defendant’s home. I am therefore satisfied that formal notification of the hearing was hand-delivered to the defendant, which obviously contained notification of today’s date.
The order made by Recorder Kholi on 16 October 2023 again reminded the defendant that if he did not attend the hearing listed on 30 October 2023 at 10.30am, the Court might proceed to hear the application for a committal order in his absence. It reminded him of his rights, namely to be represented in the committal proceedings; to be entitled to a reasonable opportunity to obtain legal representation; and to apply for legal aid which might be available without any means test; that he was entitled to reasonable time to prepare for the hearing of the contempt application against him; that he was entitled, but not obliged, to give written and oral evidence in his defence; that he had the right to remain silent and not be compelled to answer any question to which the answer might incriminate him.
It again warned him that, “If you do not attend the hearing, the Court may proceed in your absence. Whether or not you attend, the Court will only find you in contempt if it is satisfied beyond reasonable doubt that the facts constitute contempt. If the Court is satisfied that you have committed a contempt, the Court may punish you by a fine, imprisonment, confiscation of assets or another punishment permitted under the law. If you admit the contempt and wish to apologise to the Court, that is likely to reduce the seriousness of any punishment by the Court. The Court’s findings will be provided in writing as soon as practicable after the hearing. The Court will sit in public, unless and to the extent that the Court orders otherwise. Its findings will be made public.”
The first claimant was directed to personally serve this order. The process server who had attended on the previous occasions went to the defendant’s address on 19 October. He saw a Ford Focus parked in the driveway, which he knew from his previous visits was driven by the defendant. He then saw the defendant looking down at him through the blinds of an upstairs window.
Despite his repeated knocking at the front door, the defendant would not answer the door to him. He therefore inserted the notice of hearing for the adjourned final hearing dated 16 October 2023, together with a claimant’s bundle for the final hearing, through the letterbox in a sealed, addressed envelope. He also called through the letterbox to the defendant that the documents had been left at the address and therefore served on him. I am satisfied that there has been appropriate service of the documents, that the defendant was aware of them, and that he was deliberately avoiding speaking with the process server.
I have set out all of these matters in some detail because I consider it appropriate to have proceeded with the matter in the absence of the defendant. That is not a step that is taken lightly, especially with an unrepresented party, but this is a case where the Court has endeavoured on a number of occasions to ensure that the defendant is legally represented. However, he is unfortunately not represented at the present time through his own choice. It is also clear that the relevant documents have been hand-delivered to the defendant’s premises and that he has been present when that has occurred; apart from on one occasion, and that was not in relation to the most recent order, when he was present but refused to come down to the door.
I therefore consider that the defendant is fully aware of these proceedings, is fully aware of his rights and has still chosen not to attend, as he has chosen not to attend at the various other hearings listed in October. With regard to the case presented by the claimant, I have only heard evidence from Ms Amy Landon. I had got concerns previously with regard to some of the evidence filed, in that it appeared to be seeking to cover incidents that had been put before Judge Murch and dismissed.
I had also been concerned that some of the witness evidence was hearsay. For example, there were a number of telephone calls apparently made by the defendant to the claimant, which had been sampled by one person who had been told that the voice was that of the defendant but did not know himself directly. Having stated my concerns about these matters at the hearing in August 2023, I gave the claimants permission to file further evidence so that those aspects could be dealt with. That did not occur.
In relation to today’s hearing, although Recorder Kholi had set up special measures, none of the claimant’s witnesses were prepared to come to court to give evidence because of their concerns about meeting the defendant, despite the measures put in place for them. I indicated that I was prepared to hear evidence by Microsoft Teams, and duly heard evidence from Ms Landon. She was able to give direct evidence regarding a number of matters in respect of issues which had not been before Judge Murch; her witness statement carries the relevant information from paragraph 24 onwards. She had plainly had a number of direct dealings with the defendant prior to that date and was familiar with his voice and able to recognise it, particularly because there had been some unpleasant telephone calls which had directed her attention to him.
Her witness statement says that, on 6 December 2022, a call was received by the first claimant from a withheld number. When it was answered, the caller began playing very loud music, and then said “Liar”. She confirmed that this was the defendant calling because she could recognise his voice. Her evidence was that, on that day, there were a total of 14 calls taken by switchboard operators from withheld numbers. She has listened to all of these recordings. The caller played music in all 14 calls. She believed the caller to be the defendant on all 14 occasions (as in the call at 16.26, where she had been able to identify his voice) because of the fact the caller had been playing music in that call as well as the other calls to which she had listened.
There was a call on 8 December. She listened to the recording and could confirm that it was the defendant calling. Nothing unpleasant was said at that point. Similarly, there were a number of further telephone calls made on that day; at 8.35, 8.39, 8.57, 14.11, and in all of those, the witness recognised the defendant’s voice. Nothing unpleasant was said in those calls.
On 9 December, the first claimant received 43 voice mails of a similar nature from a withheld number. When the caller was asked to identify themselves, he said, “A negligence victim”, amongst other things. The witness confirmed that she had listened to these voicemails, and she could identify the caller as the defendant as she recognised his voice. Nothing unpleasant appears to have been said in respect of those. It is purely the sheer volume of calls which have been made.
On 13 December 2022, at 21.46, there was a call received which was much more serious; the switchboard operator was racially and verbally abused. The language used is really quite unacceptable. I must say that I am impressed by how the switchboard operator dealt with that call, which must have been deeply unpleasant. The call was then diverted to the queue. Whilst it was ringing the call was still being recorded, and the caller said, “I should go to Weightmans in town tomorrow and crowbar the whole effing office up. Run in there and smash the whole effing gaff up”.
I have abbreviated the words used; the defendant did not. The witness confirms, having listened to a recording of the call, that she can identify the caller as the defendant because she recognises his voice. That call is obviously very serious. Not only does he racially and verbally abuse the switchboard operator, but there is a threat of violence towards the claimant’s solicitors.
On 13 December 2022, at 21.51, there was a call to the switchboard number. The automated operator asked for the person the caller wished to speak to. The caller said, “Heart”. The automated operator said, “Was that ‘Intensive Care’?” The caller said, “Yes”. The call was then transferred to the intensive care unit. When answered by a member of staff, the caller said, “Yes, I’m one of the security guards, could you send paramedics down to the operator’s office? One of the staff is having a heart attack. The operator’s room, please”.
The person who had answered said, “The operator’s room?” The call said, “Yes, one of the lads urgently, urgently. Thanks. Thank you”. The person who answered said, “Sorry, hold on, what do you need?” And the caller then said, “The operator’s room, quick”. The witness has listened to the recording of this call and can identify the caller as the defendant. Whilst the wording is not unpleasant, it is obviously a deeply serious call to have made to try and divert emergency resources in a hospital to an unnecessary place.
There is then a further call at 21.53, where the caller asks to speak to security. Security answer, and the caller says, “Sorry mate, one of the staff have asked me to phone you. Do you know, down at the intensive care ward, there’s a load of fighting going on, mate? Could you get security down there as quick as you can?” Security says, “Yes, straight away, mate. I’ll do it now”. The caller says, “Nice one, cheers mate”. The witness says she has listened to the recording of this call and can identify the caller as the defendant because she recognises his voice. Again, nothing unpleasant has been said in that call, but plainly it is a serious matter to divert security responses to an unnecessary place.
There is then a further call at 21.55. The automated operator asks for the person the caller wishes to speak to. The caller says, “Intensive Care”. Whilst waiting to be connected, the caller says, “They think they are effing funny”. Again, he did not abbreviate the word used, although I have. The automated operator asks once again who the caller would like to speak to. The caller says, “Intensive Care”.
The call is answered by a member of staff. The caller says, “Have security landed yet?” The staff member says, “Pardon?” The caller says, “Have the security come?” The staff member says, “What security sorry?” The caller says, “From the hospital”. The staff member says, “Sorry, I don’t understand”. The caller then laughs and calls the staff member a “slag”. When the staff member asks, “Who is this, sorry?” The caller once again says, “Slag”. The staff member says, “Sorry, can you tell me who is calling please?” and the caller then parrots those words back to the staff member.
The staff member says, “Can I just take your name and phone number and I will call you back? “ Again, the caller parrots back what has just been said to them. The staff member says, “Do you know that it is an illegal offence to make phone calls to a paediatric intensive care unit?” The caller says, “Eff off”. Again, whilst I have abbreviated the word, he has not. The witness has listened to the recording of this call and can identify the caller as the defendant as she recognises his voice. That again is a serious matter, because the staff member is verbally abused and is sworn at, and it is again tying up important resources in an intensive care unit.
The witness had said in her witness statement that the threatening and intimidating language towards her and her family members on 8 November was clearly a breach of the injunction against him; however unfortunately those are matters that were before Judge Murch (albeit in hearsay form at that point) and dismissed, and thus cannot be dealt with. The witness’s evidence in relation to the sheer number of telephone calls made and the language and behaviour used has, according to the witness, affected her both professionally and personally. She has been distressed by personal abuse and threats and the text messages and voicemail messages. The legal services’ function has been undermined, as they have had to stop taking calls direct because of the defendant’s behaviour, and the witness says the defendant’s abuse to other colleagues, both before and after the injunction, has impacted on their ability to do their jobs. It has affected the people who work in the access to records team, on the switchboard, security and ICU.
In respect of the matters from paragraph 24 onwards in the witness statement, I accept the evidence of Ms Landon; that evidence has not been challenged. The evidence is of itself consistent. I am satisfied beyond reasonable doubt that the defendant has taken the actions set out by Ms Landon from paragraph 24 onwards. I am satisfied that those are a breach of the injunction that was made.
In respect of the telephone calls where nothing unpleasant was said, I consider that those would still constitute harassment because of the sheer number of calls that were made and the fact that they are tying up important resources for no good reason.
In respect of the other matters, where there were unpleasant words or swearwords used, those would undoubtedly be a breach of the injunction under which the defendant was prohibited from verbally abusing, threatening, abusing or harassing any member of staff, contractor, employee, patient or visitor.
In the circumstances, I determine that the defendant is in breach of the injunction order made. It is clearly not appropriate to proceed to sentencing until such time as the defendant has had an opportunity to present matters in mitigation to this court.
I therefore will adjourn the hearing to a date to be fixed.
I consider that it would be necessary to issue a warrant for the arrest of the defendant and for him to be brought before the Court for that hearing to take place.
End of Judgment.