April 15, 2024

Committal for Contempt of Court: Clarion Housing Association Limited -v- Clifford

County Court Committal for Contempt of Court

Claim Number: L00WD166

In The County Court Sitting At Watford

15 April 2024

Before:
His Honour Judge Richard Clarke

Between:
Clarion Housing Association Limited
-v-
Mr John Clifford

Judgment

The hearing took place on 15 April 2024 in Open Court

The Claimant was represented by Simon Strelitz (instructed by Clark Willmott LLP)

The Defendant did not appear and was not represented.

JUDGMENT

His Honour Judge Richard Clarke:

The matter before the Court today is an application for committal of the Defendant, Mr John Clifford, for breach of a civil injunction order following arrest. The proceedings are brought under CPR 65.47.
The Injunction Order was made by Deputy District Judge Harding on 20 February 2024 (“the Injunction Order”) in proceedings brought by Clarion Housing Association Limited against Mr John Clifford. Mr Clifford was ordered, within 60 minutes of service of the Injunction Order upon him, to leave 5 Gibbons Close, Borehamwood WD6 4TF and an area outlined and hatched on a Plan which is attached to the Order. He was thereafter forbidden from remaining in and entering or attempting to enter the Area unless by prior agreement with the Claimant. The Injunction Order also contained further provisions which prevented him from acting in certain ways.
The Injunction Order was supported by a Power of Arrest. There is a Certificate of Service which confirms that the Order was personally served on the Defendant at 2.05 p.m. on 26 February 2024.
On 19 March 2024, at approximately 5.07 p.m., the Defendant was arrested whilst at the bus stop on Organ Hall Road in Borehamwood. This was an area within the boundary of the markings on the Plan. He was held in custody overnight and brought before the Court within 24 hours, on 20 March 2024. On that day, he appeared before His Honour Judge Vavrecka. He was provided with a further copy of the Injunction Order, the Certificate of Service, Witness Statements of PC Musgrove and PC Pollard and an Information Sheet prepared by the Claimant entitled “Information Sheet for Defendants to a Contempt Application or Proceedings following Arrest”. Importantly, he was also provided with a copy of the Remand Order made by His Honour Judge Vavrecka, listing the next hearing today.
Counsel for the Claimant contacted a local firm of solicitors, Arkrights, and made an appointment for the Defendant to be seen by them. The Defendant was told to attend immediately following the hearing.
The Court remanded the Defendant on bail on the basis that he attend court on 15 April 2024 – i.e. today’s hearing – for the hearing of the application for his committal. The Remand Order remanded Mr Clifford on bail on the basis that he would comply with the Injunction Order and attend court today.
Somewhat surprisingly, having been told he needed to comply with the Order, the Defendant was brought back to Court the next day, 21 March 2024. He appeared before District Judge Seikham on that occasion. He had already been provided with advice on his right to remain silent.
The Defendant had been arrested at about 5.43 p.m. on 20 March 2024 and was in the bedroom of 5 Gibbons Close, Borehamwood WD6 4TF at the time. The order made by Deputy District Judge Seikham included repeating his right to remain silent and the Defendant had kept in his possession the Information Sheet which set out his rights.
The Order made by Deputy District Judge Seikham confirms that the Defendant admitted being at 5 Gibbons Close. His Honour Judge Vavrecka had made it very clear to the Defendant that he was not allowed to go to the property at 5 Gibbons Close. Nevertheless, the Defendant went there anyway, immediately following the hearing.
The Court determined on that occasion that he should be remanded into custody. Under the provisions of s.9 and Schedule 1 of the Anti-social Behaviour, Crime and Policing Act 2014 subject to certain exceptions which do not apply, periods of remand can only be for up to 8 days at a time, although they can be renewed. As a result, it was necessary for the Defendant to be brought back to Court so that the Court could consider whether to further remand him. He was presented back to the Court on 28 March 2024 and came before Deputy District Judge Cochrane.
The Defendant was, again, reminded of his right to remain silent and to see all of the evidence against him. Arkrights Solicitors confirmed that they had not received instructions from the Defendant and were unable to attend court to represent him. It appears they have still not received instructions to this day.
The Defendant represented himself on 28 March 2024. Deputy District Judge Cochrane granted bail to enable him to have the opportunity to obtain that legal advice and to attend court today with legal representation before the Court.
This is the ‘on notice’ final hearing in relation to the Defendant’s two arrests for breach of the Injunction Order. There is clear evidence before the court to show that the Defendant is aware of today’s hearing and of the need for him to attend.
The Defendant has failed to attend the hearing today. The 28-day period within which these applications must be dealt with expires tomorrow. The Court must consider whether it should proceed in his absence. The Court is satisfied that the Defendant has had clear notice of the need to attend today and has failed to attend despite this. The Court has been informed that there are allegations of continuing breach and that it is therefore important to proceed in his absence. The Court makes clear that whilst it takes that into account when deciding whether to proceed today, it will form no part of any sentencing exercise.
The Court is dealing with one admitted breach, which is a not inconsequential factor. The Court is satisfied that the Defendant has had adequate notice of today’s hearing and that he has chosen not to attend. The Claimant has heard nothing from the Defendant and there is nothing from the Defendant on the court file. Therefore, there is no evidence why he would not be able to attend today. The court is satisfied in those circumstances that it is appropriate to proceed today.
The evidence of breach on 19 March 2024 was served on him at the hearing on 20 March 2024. The Claimant is entitled to rely on the written statements of the police officers. The Police Officers are not in attendance today with one not being in attendance due to ill health. However, the Court is satisfied that the Claimant can rely on the written statements of the officers in the absence of any challenge to their content.
Given that there is no attendance by the Defendant, the Court finds proven to criminal standard that the Defendant has breached the Injunction, first on 19 March 2024, having entered the area on the Plan from which he was excluded having been served with the Order and, secondly, on 20 March 2024 having returned immediately following the hearing, after specifically asking the Court if he could return and having been specifically told by His Honour Judge Vavrecka that he could not.
The Court is, therefore, dealing with two breaches proven to the criminal standard.
When the Court considers sentencing, it must determine the appropriate sentence and, if a custodial sentence is considered appropriate, then consider whether such order should be suspended.
There is no formal evidence of continuing breaches, but there is background evidence. I cannot, therefore, give credit to the Defendant that these are isolated breaches.
The manner in which the court should approach sentencing in cases involving breach of a civil injunction is set out in the case of Lovett v. Wigan Borough Council [2022] EWCA Civ 1631. The Court’s attention was properly drawn to the decision in that case by the Claimant.
The starting point is to consider level of culpability show by the Defendant and, secondly, to determine the level of harm. There are three levels of culpability from (A) to (C). The highest level of culpability is “Category (A)” which is “Very serious breach or persistent serious breaches”. The lowest level of culpability, Category (C) reads “Minor breach or breaches”. The Court is satisfied that it is dealing with breaches which fall between those two levels.
The Court is satisfied that in relation to the offence on culpability that for 19 March it is dealing with offence at lower end of culpability. In relation to the second breach, the Claimant submitted that it is a category A.
The Court must take account of the fact that there are two breaches in two days, both committed within one month of the Order being made. They are serious breaches of the Court order. However, that must be balanced against the fact that there is no evidence of threatening to use or using violence, nor nuisance or annoyance being caused.
The breach on 20 March 2024 was a flagrant breach but there is limited evidence of serious misbehaviour.
In conclusion, the Court is satisfied it is dealing with a level of culpability falling between a low category (A) and a high category (B).
The Court is also required to consider the level of harm caused and whether the Case falls within Category 1, 2 or 3. Category 1 is a case which causes “very serious harm or distress” whilst Category 3 is a case which causes little or no harm or distress.
On 19 March 2024, the Defendant was arrested at the bus stop. The arrest was not because of conduct towards any other person at the time, nor was any criminal offence being committed.
The incident on the second occasion was an arrest inside the Property at 5 Gibbons Close. This is more problematic for the Defendant. There is some undated material from the Defendant on the court file which appears to have been produced whilst he was in custody because it has a prison number on it. It appears that Mr Clifford wanted to apologise for his behaviour and for not listening to the court. He sought to make submissions that he should be allowed to enter the area and 5 Gibbons Close as he says this is the address of his cousin, Caroline. He also wished to apologise to the Claimant for his bad behaviour and the occupants of number 4 Gibbons Close, which he accepted was out of order.
The court has not made any variation to the Injunction Order.
As far as harm is concerned, the Court is satisfied it is dealing with a case falling between the top end of category 3 and the lower end of category 2.
The starting point for sentencing would appear, therefore, to be a period in custody. Applying the table in paragraph [54] of Lovett v. Wigan Borough Council, the Court considers that the appropriate starting point for the sentence in relation to the breach on 20 March 2024 is a one-month custodial sentence, recognising that the range of sentence is from adjourned consideration to a 6-month custodial sentence. In relation to the breach on 19 March 2024, the Court does not propose to make a separate order
The Court must also consider whether the sentence accurately reflects and is proportionate to the seriousness of the breaches.
The Second breach is clearly the more significant as the Defendant was within the property and it was committed immediately after the court hearing that day. As such the Court is satisfied that one month is an appropriate starting point and that a sentence of imprisonment for one month is the appropriate sentence in this case.
Having determined that, the Court must consider whether a suspended sentence is appropriate. In this case, after the arrest for the first breach, the Defendant was granted bail on conditions requiring his continued compliance with the Order. That clearly did not work. There is clear information before the court of a continuing desire to go back into the premises.
As the Court has already noted, it is unable to take into account of further untested allegations of breach but, by the same token, it cannot proceed on the basis of a positive view of compliance with the order in the meantime.
There is nothing that would enable the Court to be satisfied that a suspended sentence would assist with ensuring compliance with the Order. Taking into account that the Defendant went straight to premises after the hearing before His Honour Judge Vavrecka on 20 March 2024, the Court is satisfied that the custodial sentence should not be suspended.
The Court is aware that time spent on remand is not automatically taken into account when determining the overall time the Defendant will spend in prison. The Court is satisfied that the seven days the Defendant spent on remand should be taken into account when determining the time the Defendant should spend in custody.
Therefore:
a. On the first breach on 19 March 2024, the court will not impose a separate penalty;
b. On the second breach on 20 March 2024, the Court imposes an immediate custodial sentence of one month;
c. Seven days will be deducted from the time the Defendant will spend in prison on account of the time spent on remand.
Consequently, the Defendant will be sent to prison at HMP Bedford for a total of 24 days.

HHJ Richard Clarke
15 April 2024