Committal for Contempt of Court: Cornwall Council -v- Orange and others
Case No: 14097168
In the Court of Protection at Truro
6 January 2025
Before:
His Honour Judge Mitchell
Between:
Cornwall Council
-v-
John Orange
Joan Orange
David Orange
Judgment
His Honour Judge Mitchell:
INTRODUCTION
1. I am dealing with an application, a Committal Application by Cornwall Council relating to the actions of a Mr David Orange, the Respondent.
2. The case has been brought before me sitting as a Tier 2 judge in the Court of Protection.
3. The Applicant is represented by counsel, Mr Cudihee. The Respondent, Mr Orange, has not attended and is not represented.
BACKGROUND
4. I think it is right that I say something about the background.
5. The Local Authority commenced welfare proceedings in the Court of Protection in, I think May of this year, more particularly under section 16 of the Mental Capacity Act. That was in relation to Mr John Orange and there is also his wife, Joan.
6. John, as I understand it, is 80 years of age and has dementia. It is understood that Joan suffers from a similar condition. The purpose of the Proceedings, which is an important part of the context of what the Court is dealing with today, was particularly to regulate the use and occupation of John and Joan’s home, 4 Bridle Way, Quintrell Downs, Newquay, I will refer to that as the Property.
7. It is understood that David, who is their adult son, was also residing at the Property at the commencement of the Welfare Proceedings.. John has, as I understand it, significant health and social care needs extending to significant domestic tasks of everyday life. I think Joan, also needs significant support, and that support was commissioned by the Local Authority, initially designed to be a number of times a day care visit package. This was originally incepted back in May ‘23. Problems ensued because the care agency instructed, reported that care was often declined by David, either acting on his own account or purportedly on his parents’ behalf and there were problems accessing the Property due to David’s obstructive behaviour.
8. The care provider changed, I think that was in the autumn of ‘23, but that new care provider ceased work almost immediately, reporting verbal abuse from David. Another carer was commissioned but reported similar concerns and the carers were also expressing concern for their own safety due to aggression from David. So the backdrop to the substantive proceedings were clear concerns by the Local Authority regarding the viability of the care package and concerns about what otherwise would be the neglect of two vulnerable, elderly people, and those concerns are being couched in terms of David Orange’s behaviour and the impact of it.
9. I should also say that certainly, according to the evidence filed on the electronic file, that the Proceedings were issued after repeated attempts were made to get David to moderate his behaviour.
10. So that is the backdrop.
11. The procedural history is that on 9 July of this year, District Judge Taylor granted an Injunction against David Orange.
12. The terms of that injunction essentially were this and I quote from the Order itself. At paragraph 2 that:
“The Respondent, David Orange, shall leave the property at 4 Bridle Way, Quintrell Downs, Newquay and its surrounding gardens, land and outbuildings within 14 days from the date of personal service on him of this order.
[Then at 3] having left 4 Bridle Way, Quintrell Downs, Newquay and its surrounding gardens, land, and outbuildings, Respondent, David Orange, must not return to enter or attempt to enter it except with prior agreement of Cornwall Council and only for the purpose of visiting his parents, the First and Second Respondents
[and then at 4] paragraphs 2 and 3 of this order shall be effective against David Orange once it is personally served on him
[and at 5] that paragraphs 2 and 3 of the order shall last until further order of the Court.”
13. The Order also recorded the Court’s view that John lacked capacity to litigate and to make decisions regarding care and support and his contact with David. That Order was personally served on 10 July on David.
14. On 25 October, District Judge Taylor dealt with a Committal Hearing. That was in respect of an allegation of breach of the Injunction or allegations of breaches I think on three separate occasions, when David was said to have been at the Property in breach, and the Judge found the breaches proved. The Court duly imposed a suspended prison sentence of 7 days suspended for 6 months. A Power of Arrest was added to the Injunction. The resultant Order was served personally on David on 5 November.
CURRENT APPLICATION
15. That brings me to the current Application.
16. What is said in respect of the current Application is that on 6 December, in the evening, I think at around 8.30pm, that David was arrested by the police pursuant to the Power of Arrest, at the Property itself. It is not entirely clear to me how long he was held, but from evidence I will come to in a moment, that the Court has heard today, it would appear to be less than 24 hours, probably the following morning.
17. These Committal Proceedings, nonetheless have not been initiated by the Power of Arrest, but have been initiated by what is called a COP9. This is effectively a with notice hearing in the Court of Protection Proceedings, and that Application has been accompanied by a document setting out David Orange’s rights, in accordance with Court of Protection Rule 21.4. The documentation, the Application, the statement of rights and the supporting witness statements were personally served on David Orange on 14 December.
18. It is right to say that all Applications, both substantive and in the context of the previous Contempt Application, and indeed, the current one, they have all proceeded without any attendance by on behalf of David Orange and he has singularly failed to engage with the Proceedings at all despite being a named Respondent, and despite being personally served in the way that I have set out.
19. The current Application came before me initially on 19 December. That was adjourned in part because of David’s non attendance and I gave further directions on that occasion that are set out in the Order that was made. That resultant Order was personally served on David Orange on 30 December. Again today, David Orange has not attended.
TO PROCEED TODAY OR NOT?
20. So the first issue that has come before the Court for consideration today has been whether to proceed, notwithstanding David’s non attendance.
21. In that respect, as stated, he has been personally served and is well aware of the hearing today.
22. Indeed, I am told he spoke with the Local Authority’s solicitor on Friday last, again was told of the date and time and said that he would do his best to be here.
23. Plainly, proceeding in his absence is potentially prejudicial to him, but I have to say that it is unclear if anything is to be gained by putting this off on a further occasion because all indications are that non attendance is deliberate.
24. On occasion, David will say that he has no money to get to Court, but to put that in context, this court is Truro. He is based in Newquay, not that far away. There is a reasonably good bus route. It bears a very limited cost because of state subsidy. The Court does not accept that even someone in a relatively impoverished state could not get here for something as important as this, and the reality, it seems to me, is that if the matter was put off today, we would be in exactly the same position on the next occasion. I have, therefore, decided to proceed, unsatisfactory though that is.
THE CONTEMPT ALLEGATION/FINDING
25. That leads me then to deal first with the contempt allegation.
26. The charge, if I can call it that, is a very simple one, namely, that David Orange was present at the Property on 6 December in breach of the Injunction.
27. The allegation is supported by a statement from PC Eagles, the arresting officer. I should say I previously gave permission for the evidence to be in statement form rather than affidavit.
28. PC Eagles records that on 6 December at approximately 20.25 hours, along with PC Carthew, he was made aware of an incoming call to the police in relation to 4 Bridle Way, Quintrell Downs, Newquay. The call was to the effect that a male at the address called David Brindley Orange, was inside the Property, and the information provided was the Court of Protection had issued an Order with a Power of Arrest attached to prevent David Orange from so being at the Property unless it was for a prearranged visit agreed with the Council. He arrived at the address and spoke with a member of the care team who was present caring for the adult parents. He entered the Property, located a locked shut wooden door therein, the door was eventually opened by David Orange and he was consequently arrested on suspicion of being in breach of the Order.
29. PC Eagles has given evidence today by CVP link largely confirming his statement with some more detail. He was asked in particular how he identified David Orange and said that Newquay being a relatively small place, he had actually gone to school with him, recognised him from his own familiarity with David Orange, and was clear that it was David Orange who was arrested at the Property.
30. I have also heard briefly from Donna Jones, who is the team lead for the social workers for the Watergate area, within which the Property is located.
31. Ms Jones confirmed that she had interrogated the Local Authority, I think it is called Mosaic System, and there is no record of David Orange being in touch with the Local Authority requesting or agreeing any arrangements to visit the Property.
32. I remind myself that the burden is on the Council to prove its case and the standard is beyond reasonable doubt, so the criminal standard.
33. I am entirely satisfied that the Council has established the case beyond reasonable doubt. It seems to me very clear that David Orange was arrested at the Property itself. I am satisfied to the requisite standard that he was aware of the terms of the Injunction because he has been personally served with it, indeed, on a number of occasions, and I am satisfied that he attended the Property voluntarily. There is no other explanation for his attendance. Further, that was without the agreement of the Local Authority. So I am satisfied beyond reasonable doubt that David Orange is in breach if the Injunction specifically paragraph 3, and that therefore, he is in Contempt of Court.
SENTENCE
34. So the next issue is one of sentence.
35. The starting point, by analogy, at least, although it is a relatively loose one , is with the Sentencing Grid approved in Lovett V Wigan CC EWCACiv 1631.
36. The Court is more familiar with this Grid in an anti social behaviour context, but taking the Grid as a guide to to culpability and harm, it seems to me the culpability here is high because this is someone who has breached the Order, really without any excuse in what appears to be complete disregard for it. So I would regard this as high culpability, but relatively low harm because no actual harm was caused, albeit I accept there is the potential for harm, because of the potential impact upon the viability of the care package. Indeed, it is instructive, that, according to PC Eagles, the call came from one of the carers and it was one of the carers who met the Officer at the Property.
37. So it is not a perfect analogy, I completely accept, but if I was to take high culpability and low harm, it would be something equating to A3 on the Grid, which would indicate a starting point of 1 month imprisonment, but a category range of simply adjourning sentence, to up to 3 months.
38. I think the starting point of 1 month is somewhat disproportionate in sentencing terms, particularly when compared to sentencing for the previous breach and I think my starting point for today’s purposes, ignoring the suspended sentence for the moment, would be 14 days’ imprisonment.
39. So far as aggravating factors are concerned, I am not aware of any. I say that, albeit there is the breach of the suspended sentence, but I put that to one side for the moment given I will come back to deal with the suspended sentence separately, and I think the Court needs to be careful not to do anything which would amount to double counting.
40. In regard to mitigation, I previously had some concerns in terms that the Court apprehended that David Orange may himself have been allocated a social worker, which may have indicated vulnerability on his part.
41. As part of previous directions, a statement has now been obtained from a social worker who previously engaged with David Orange, Christine Handley. Indeed, she has provided quite a detailed statement setting out her engagement or attempted engagement with David Orange, albeit did not explain how the allocation came about in the first place. However, what Miss Handley does say is that her assessment was that David Orange has capacity, had no social care needs, ultimately, and has no diagnosed condition.
42. Mr Cudihee on behalf of the Local Authority, has caused further enquires to be made as to why the allocation was made in the first place. He tells me that there was an initial allocation in an attempt to try and understand what was going on with David and whether he did in fact have vulnerabilities or needs, and that, as I say, Christine Handley sets out that, in fact, all of those were answered in the negative. So there is nothing there that the Court could find amounts to mitigation.
43. In relation to time served, as I have already alluded to, David Orange was arrested on 6 December. He appears to have been held or detained for less than 24 hours. So he is entitled to time served for the day. That is doubled up for the purposes of deduction from sentence, because of course, any sentence would only be served as to half time.
44. As it happens, there is a further factor here, which was explored at the previous hearing on 19 December, which is that in my Judgement the Power of Arrest should not have been added to the Injunction Order.
45. The Court simply had no power to do so, sitting as a Court of Protection. That Power has since been removed, but it does mean that there was an element of wrongful arrest. I should say, that does not go to breach because plainly David Orange was found to be at the Premises in clear breach, but nonetheless, seems to me might be a factor the Court takes into account on sentence.
46. What I am going to do is, in effect, double the provision further, so I am going to deduct 4 days from the sentence rather than 2 as a mark of the factor that he was wrongfully subject to a Power of Arrest. So that gives rise to a net sentence of 10 days ignoring the suspended sentence.
47. Coming onto the suspended sentence, I have to say I can find no reason not to impose it. I take no pleasure in imposing a sentence of imprisonment in circumstances of this sort, but the fact is that David Orange was given a chance to show compliance by District Judge Taylor, who imposed the suspended sentence. He singularly failed to take it and the Court now is left in a position where, in reality, if this order is going to be enforced, it has little option but to impose the suspended sentence.
48. So that would mean a total sentence including the suspended provision of 17 days.
49. Finally, I then need to step back and consider totality because the Court is dealing with a number of breaches and there are two separate sentences. I remind myself in doing that that the Court is looking at achieving compliance with the Order rather than punishment. It seems to me 17 days in that context may be a little high. I am going to reduce the overall total to 14 days to include the suspended sentence, and that is the sentence of the Court.