Case Number: 13455313
In the Court of Protection
Sitting At Derby
22 August 2023
Derbyshire County Council
- I am again dealing with James Grundy. On 16 February 2023, in his absence, I found two allegations of breach of an injunction imposed by District Judge Parker proven and the Defendant thus in contempt of court to the criminal standard of proof. The breaches were that on 18 August 2022 the Defendant met face to face with P, unsupervised at P’s property at 3.10pm and that the Defendant met face to face with P, unsupervised in P’s property on 14 November 2022.
- The Defendant did not engage at all with the contempt proceedings until he attended without representation the previous sentencing hearing on 27 April 2023, at which I declined to proceed on the basis that I wanted the Respondent to have the benefit of the non means tested legal aid that is available for contempt proceedings. He has now secured that and representation today.
- The hearing today is for sentence. It was held as an attended hearing, though there was an observer present, Professor Kitzinger, who had received a transparency order, and who observed via CVP.
- Representation today consists of Ms. Harvey counsel for the claimant, Ms. Titus-Cobb, counsel for P and for Mr. Grundy, Ms. Tinsley solicitor.
- I turn to the claimant local authority’s position on sentence as per Ms. Harvey’s written and oral submissions. I summarise them as follows.
a. The local authority view the breaches as being very serious because P is frightened in her own home. Albeit historically, the Defendant received a 12-month suspended sentence in March 2013 at Crown Court for abducting P and holding her against her will. There was also imposed a restraining order in March 2013 with which the Defendant complied such that it was lifted in May 2014, albeit in the face of concerns from health and social care and the police.
b. There is evidence that P was very distressed when the Defendant attempted to open the key-safe in October 2022. I note however that this (being outside the home) would not have been a breach of the injunction, the terms of which are set out in my previous judgment. Perhaps the injunction could have been widened in scope but was not.
c. On 2 November 2022 P was reported by social workers to appear scared and emotional and would not allow her social workers into the house. This was reported to be due to the Defendant having previously shouted at P. Again, I note that there is no evidence that the Defendant had been at P’s home on 2 November 2022 or was in the home when P answered the door.
d. The Defendant’s actions generally, are creating a real risk P being unable to remain within her own home with her feral cats. P has previously gone into residential care in 2019 for one year, by order of the Court of Protection, while her home was cleared and made habitable. The Defendant continuing to attend at P’s home increases the risk of him bringing in food which is or becomes out of date, attracting vermin, and he has in the past hoarded his own items at P’s home. The local authority is of the opinion that the Defendant is the reason why P will on occasion not admit carers who help P to keep her house clean and tidy. This impacts negatively on local authority efforts to help P develop her self-care skills and caring for her home environment. P is being subject to a more restrictive regime than would otherwise be the case due to the Defendant’s actions.
e. Ms. Harvey urged the court to impose a sentence of imprisonment given the seriousness of the contempt, submitting that it was intentional and due to the harm done to P. However, the local authority did not press for an immediate custodial sentence in the hope that this would have the same effect as the 2013 restraining order on the defendant. She sought a two-year period of suspension upon compliance with the terms of the existing injunction.
f. Ms Harvey put the level of culpability in the highest category in that the defendant has not engaged with these proceedings, an example being that he threw the papers relating to the committal at the process server sent to serve him. He has had no regard for the injunction, Ms. Harvey submitted. She invited the court to consider the level of harm at the highest or middle level under Lovett.
- Ms. Titus-Cobb restated that P is not party to the committal application and adopted a neutral position in respect of it. That said, P clearly has a direct interest in the outcome and the court’s decision on sentence is likely to impact P’s future contact with the Defendant, which may in turn impact on her mental health and wellbeing, her social stimulation and interaction, and her engagement with professionals all of which are to the fore in the welfare proceedings.
- As such, Ms. Titus-Cobb focused her submissions on the potential impact on P to any change to the current contact arrangements of whatever sentence is imposed on the Defendant today. She submitted that the injunctive orders were made against the Defendant because on non-compliance with orders on contact made by this court. Specific and targeted orders were deemed necessary by the court to prevent the defendant from having contact with P outside of the prescribed arrangements. The injunctive orders exist in relation to P’s best interests as to her contact.
- There is evidence in the welfare application that suggests that contact has taken place on a near daily basis since March 2021, despite the injunctions. Again, within the welfare proceedings, there is evidence from a police officer by way of bodycam footage which shows that the defendant was recently at P’s property and showing P in a state of some distress. There is evidence that P is presenting as increasingly withdrawn and anxious, especially as regards her property and is expressing paranoid beliefs. P expresses ambivalence as to contact with the defendant; she appreciates him feeding her animals but is fearful when he shows anger. I have noted the factual updates provided by Ms. Titus-Cobb but of course I remind myself that I am sentencing for the breaches found, not for any earlier or later alleged breaches, though they give context.
- There is a clear issue as to P’s hoarding behaviour, but Ms. Titus Cobb draws the court’s attention to the evidence that shows that P’s home situation has not deteriorated to such an extent that P has been unable to remain at home. She is still accepting of some care and support. The decline in P’s mental state has not been definitively tied into the Defendant’s ongoing presence or his behaviour towards P, though P is awaiting a psychiatric review. The deterioration may be related, it may be due to another reason.
- The litigation friend is of the view that if the effect of the sentencing decision is to restrict contact between P and the Defendant and/or to enforce the authorised contact arrangements, it will be useful then to assess how P responds to this and to see if there is a measurable improvement in her presentation and wellbeing, her engagement with professionals and ability to maintain a habitable home, all of which underpin the welfare application.
- On the other hand, the litigation friend is also mindful of the nature of P’s relationship with the Defendant, and lack of other social contacts. There is potential for her to become more isolated should her contact with the defendant decrease.
- It has not been possible (partly as a result of the Defendant’s non-compliance) to assess whether P’s ongoing challenges are due in the main to increased contact with the defendant, in breach of the injunction, or other reasons, or perhaps a combination of matters. The Defendant’s breaches are hindering the court’s functions in respect of best interests assessments and decisions as to contact.
- In mitigation, Ms Tinsley informed the court that the defendant states that he is in a relationship with P and has been for 26 years, that they are partners as opposed to merely friends and is distressed about the notion that he cannot have a relationship with P. Ms. Tinsley confirmed that notwithstanding that the defendant has some involvement with adult social care, he is only accepting of a certain level of help, and Ms. Tinsley confirmed that the defendant is capacitous. Whereas Ms. Tinsley submitted that there are some mental health issues, those do not concern the court insofar as the validity of the injunction is concerned and did not seek to disagree with the local authority assessment of the level of culpability as being at the highest level in the matrix.
- As against that, the specific breaches which are being sentenced are not the most serious. The defendant cares for P (in the widest sense) and wants to have contact with her. He would struggle in custody, though I note that no one today seeks any sort of immediate custodial sentence. If a suspended sentence is passed, the defendant would have to understand that he would have to comply, though he would find that difficult to accept. He does not understand why the court is of the view that he and P need to be kept apart other than supervised contact. Ms. Tinsley submitted that the defendant is here to be sentenced and has to abide by what the court decides. She does not underestimate that it will be difficult for the defendant, but Ms. Tinsley accepted that the court must act in P’s best interests.
- As the assertion of something more than a family friendship was being asserted by the defendant was something that the court was unaware of previously, despite a lengthy history within the Court of Protection, I asked Ms. Harvey and Ms. Titus-Cobb to respond. This was news to both of them too initially, and also to P’s social worker who has been involved with P for some time. Ms. Harvey did later point out a single historical reference by the defendant to the police that P was his partner, but there is nothing else. I cannot accept the assertion made by Ms. Tinsley on the defendant’s behalf, at this stage, based on there being no evidence that this is anything more than a case of the defendant being a family friend of P’s parents, and latterly P.
- I turn to my decision. This is not an easy exercise given the history. I have listened carefully to the submissions.
- In my previous judgment I referred to the Court of Appeal guidance in Lovett v Wigan Borough Council, Smith v Network Homes and Hopkins v Optivo  EWCA Civ 163. I have directed myself to the very helpful sentencing matrix contained in that judgment. In my judgment, in terms of the two breaches proven in isolation, the level of direct harm is low level.
- Only two of the four breaches pursued were found proven, and apart from the Defendant being present on two occasions at P’s home when he should not have been, on those occasions there is no evidence of obvious harm to P directly arising out of the breaches. The local authority chose not to pursue contempt by way of a series of numerous alleged breaches, as tends to be the norm in anti-social behaviour applications in the County Court under the Anti-Social Behaviour, Crime and Policing Act 2014, but only to rely on four, one of which was withdrawn and the other not proven. I repeat I am only sentencing for the proven breaches. As against that these are clear breaches and if matters run the course the local authority believes they will, then there is likely to be harm to P.
- Of themselves, as I say, the two proven breaches were not by any means the most serious breaches that might have occurred, a point taken by Ms. Tinsley. On the other hand, I have to consider the wider canvas within the welfare proceedings and the way in which the Defendant’s proven breaches of the injunction and other alleged breaches are impacting on the welfare proceedings and thus P. The court cannot within contempt proceedings simply adopt tunnel vision. There is much for what Ms. Titus-Cobb submitted, namely that today’s sentencing outcome may create a pause, and a time for the professionals involved to see whether P’s deteriorating presentation is due to the defendant’s presence or other reasons unconnected to the defendant, or a combination of both.
- I return therefore to the Lovett matrix. In my judgment, in terms of harm (looking narrowly at the proven breaches) this is category 3. Against the wider backdrop, the court could well consider it to be category 2. In terms of culpability, there is no dispute that this is category A.
- Category A culpability with category 2 harm indicates a starting point of three months custody and a range running from adjourned consideration to 6 months. I make clear at this point this case does not fall at the upper end of that range.
- Category A culpability with category 3 harm (i.e., looking at the breaches narrowly) indicates a starting point of one month and a range from adjourned consideration to three months. I do not consider adjourned consideration; there has been a de facto adjournment since the findings were made last February, and further delay is to be avoided.
- Having considered all of the matters relevant to my decision, I am of the view that applying the matrix, the custody threshold is passed.
- Clearly, I will be suspending the sentence; no one asks me today to pass a sentence of immediate custody. I have concluded that this is a case of category A culpability and category 2 harm (the broader view of harm) but that the sentence should be very much towards the lower end of the range, i.e., below the starting point of 3 months.
- In Lovett the court followed the guidelines with this observation. “It cannot be over emphasised that the task of sentencing a defendant for breach of orders in contempt of court is a multifactorial exercise of judgment based on the particular facts and circumstances of the case before the judge. Any sentence must be just and proportionate.”
- Given that, the sentence on the multifactorial basis will be one of 28 days imprisonment, suspended for 2 years upon compliance by the defendant with the terms of the injunction imposed by District Judge Parker.
- Mr. Grundy: for your breaches and having been found in contempt of court, you are sentenced to 28 days in prison, but that sentence will be suspended provided that you comply with the terms of the injunction and the days and times when the court has directed that you should have contact with P. Now that you have engaged with this process, there may be scope to change the contact arrangements. Although your solicitors are only involved today for this hearing, there are other sources of help for you within the welfare proceedings to which you are a party.
- That said, if you breach the injunction again, it is likely that further committal proceedings will follow and if they are found proven, you would stand to be sentenced for those breaches and the suspended sentence made today would be activated, subject obviously to what is said on your behalf.
- You have the automatic right of appeal against this sentence within 21 days of today. You do not need the court’s permission.
DJ Davies 22 August 2023.