Claim Number. H00CT159
In the Canterbury County Court
22 February 2023
His Honour Judge Parker
Canterbury City Council
Before His Honour Judge Parker sitting in Court 10
Mr Kee for the Claimant
The Defendant did not attend.
This hearing arises following the arrest of Mr Brewster for an alleged breach of an anti-social behaviour injunction. Mr Brewster was arrested and brought before me on 25 January 2023. I adjourned the hearing to today.
Mr Kee has attended court today to present the case for the Claimant, but Mr Brewster has not come to court.
The first question I had to decide today was whether I should adjourn, given the absence of Mr Brewster.
I decided to proceed with the hearing. I will restate more fully my reasons for doing so.
The case was listed at 10 am. I delayed the hearing until 10.15 am. At 10.15 am there was no sign of Mr Brewster.
When the Defendant appeared before me on 25 January 2023 it was explained the case had to be brought before me within 28 days under CPR 65:47 (3) (a). I adjourned to allow Mr Brewster to get legal representation. I told him the date of today’s hearing.
Mr Brewster was personally served with my order of 25 January 2023, which set out the hearing date. That order recited the warning I gave him at court that if he did not attend the next hearing, the case could proceed in absence.
I am aware that Mr Brewster’s address at 1 Cornwall Gardens is within what is for most people comfortable walking distance of the court.
There is no doubt that Mr Brewster has mental capacity to deal with the matter. His then solicitors obtained a medical report dated 5 September 2022 which confirmed that he did then have capacity, and nothing in his presentation to me on 25 January 2023 suggested otherwise.
My clerk has checked the court records and confirms that there has been no communication from Mr Brewster to explain his absence.
The Claimant is not aware of any communication from him since the last hearing.
There is no good reason that I am aware of for the Defendant’s absence.
Two witnesses have attended today: Ms Chapman and PC Reed. It would cause considerable inconvenience to them to have to return to court to give evidence on another date.
A further adjournment would put the case outside the 28 days within which I am required to deal with it by CPR Part 65. If I were to adjourn and if the Claimant wished to pursue the matter, it would have to make a contempt application.
Taking all of that into account, I decided it was appropriate to proceed with the hearing today.
The history of the relevant anti-social behaviour orders is this:
DJ Rahman’s order of 7/5/21 –
“must immediately refrain from lighting any further fire in the communal garden at Cornwall Gardens, Sussex Avenue, Canterbury, upon being served with a sealed copy of this injunction order”
He was arrested and brought before me in February 2022. I considered the terms of the order and amended it by my order of 4 February 2022. Paragraph 1 of that order stated
“Paragraph 1 of the injunction dated 7 May 2021 be amended so as now to read
“Not to light any fire or use any barbeque in the communal garden at Cornwall Gardens, Sussex Avenue, Canterbury (“communal garden” means all the gardens, paths and lawns surrounding and leading up the buildings at 1 and 2 Cornwall Gardens)”
I made a further order on 27 April 2022, which provided at paragraph 4:
“Paragraph 1 of the injunction dated 7 May 2021 (as amended by paragraph 1 of the order dated 4 February 2022) and the power of arrest attached to that paragraph 1 as so amended, shall continue in force until 4.00 pm on 7 May 2023, subject to review as provided for at paragraph 8 of this order”
(The review did not lead to any discharge or variation of the relevant part of the order).
The allegation of breach is recited in paragraph 5 of the recitals to the Order of 25 January 2023 as follows –
“It is alleged that the Defendant has breached paragraph 1 of the order of 7 May 2021, as amended on 4 February 2022 and continued in force by the order of 27 April 2022, by lighting a fire in the garden outside 1 Cornwall Gardens Canterbury on 25 January 2023 at a time prior to 11 am on that day, and is therefore in contempt of court.”
District Judge Rahman’s order of 7 May 2021 had a warning in bold type
“If you do not comply with this order you may be held in contempt of court and imprisoned or fined, or your assets may be seized”
I have seen evidence of personal service on Mr Brewster of the relevant orders.
I turn to the evidence about 25 January 2023.
Evidence of the alleged breach is given in the witness statement dated 26 January 2023 of Alison Chapman. This witness statement was served with my order of 26 January 2023 on the defendant by Mr Tickle, as per his witness statement of service dated 7 February 2023.
Ms Chapman had made a witness statement rather than an affidavit, but she affirmed at the hearing that her statement was true.
Ms Chapman’s statement is short and clear. On arrival at Cornwall Gardens on 25 January 2023, between 10 and 11am, she could smell a bonfire. She saw the defendant lighting a small fire. She asked the defendant for directions to Sussex Road and while the defendant gave them took two photographs of the fire. She exhibited black and white copies of her photographs. Mr Kee showed her colour copies of what she confirmed were the same photos.
The photographs are of a person I believe to be Mr Brewster, having dealt with him in court on several occasions.
Mr Brewster is in the garden area, surrounded by debris, in the centre of the photo on the ground is a metal pot containing a pile of twigs or short pieces of wood. It is clear in the colour photo that orange flames are coming from the twigs. Those flames can just be made out in the monochrome copies.
Ms Chapman confirmed that the man in the photographs is Mr Brewster, that no one else was present with him, and that the photograph was taken in the garden of No. 1 Cornwall Gardens.
PC Reed gave evidence. His witness statement of 25 January 2023 records he attended 1 Cornwall Gardens. It says that he knows Mr Brewster; he saw Mr Brewster in the garden; there was a strong smell of smoke and a fire burning. He says that he (the Defendant) wanted to show him what he was burning. He saw a large pile of ash. He arrested Mr Brewster at 11am.
PC Reed affirmed in court that his statement was true. He confirmed to me that no one else had been present with Mr Brewster.
I apply the criminal standard of proof. I must be sure. I have read and heard the very clear evidence of Alison Chapman and of PC Reed. In the absence of any explanation from Mr Brewster of any other reason why he is shown next to a fire, IU consider it is absolutely plain the fire was lit by Mr Brewster. I am also satisfied to the criminal standard that his fire was in an area where he was prohibited from lighting one.
I therefore find that Mr Brewster was in contempt of court as alleged due to his actions of 25 January 2023
It would not be right to proceed to sentence today without the opportunity for Mr Brewster to offer anything in mitigation. There is another hearing listed in this matter at 10am on 9 March 2023, at which the Claimant will be seeking to vary the terms of the existing injunction.
I have considered whether there is any procedural difficulty in my adjourning sentencing to that date. I do not believe there is. Adjournment of sentence is one way of dealing with the matter, as recognized by the Court of Appeal in Lovatt v Wigan, and thus it appears to me that I have dealt with the case today sufficiently to satisfy CPR 65. Nor do I consider that Mr Brewster will be at any disadvantage by reason of the next hearing dealing with other matters as well: the March hearing will not be one where his right to silence arises, or where I will have to apply the criminal standard of proof.
I therefore adjourn the question of sentencing to 9 March 2023.
I will ask the Claimant to prepare a note of my judgment, so that Mr Brewster may know as soon as possible what the outcome was today. Once I have approved the note, the Claimant should please serve it on Mr Brewster, either personally, or by hand delivery through his letterbox.
The court indicated that at the next hearing it would wish to hear what help has been offered to Mr Brewster to assist with improving the condition of the garden.
The court indicated that it would be helpful for the court to have some sort of plan or sketch showing the layout of the garden etc.
Approved as an accurate note of judgment