Committal for Contempt of Court: London Borough of Hammersmith and Fulham -v- Hasanzadeh

County CourtCommittal for Contempt of Court

In the County Court sitting at Wandsworth

19 May 2023

Before:

District Judge Daley

Between:

London Borough of Hammersmith and Fulham

-v-

Said Ahmed Asil Hasanzadeh

Order

District Judge Daley on 5 April 2023:

  1. This is an application to commit Asil Hasanzadeh to prison for breach of an order made by District Judge Parker on 31 January 2022 under section 1 of the Anti-social Behaviour Crime and Policing Act 2014 and continued by me on 18 March 2022. The first Order was made without notice to Mr Hazanzadeh. He had notice of the hearing on 18 March 2022 and chose not to attend. Paragraph 3 of the order prohibited the defendant from “carrying a knife or any weapon within the London Borough of Hammersmith and Fulham as denoted in the map” attached to the order. Paragraph 4 prohibited the defendant from “carrying our or participating in any form of drug dealing within the London Borough of Hammersmith and Fulham”, as similarly denoted.
  2. A power of arrest was attached to both paragraphs 3 and 4.
  3. The defendant was served personally with both orders, the interim order on 12 March 22 and the final order on 6 May 2022. I have seen certificates of service.
  4. On 10 August 2022, the claimant applied to commit for breach of the order dated 18 March 22. Strictly, that order did not contain a penal notice and in fact it is the order of DJ Parker, expressed as continuing until further order, that he is in breach of. My order of 18 March simply curtailed the running of that order by ending it on 17 March 2024.
  5. The defendant was not served personally with the application to commit. It was sent to him in prison by post on 6 September 2022, together with the affidavits of Rumel Wahid and Pav Uppal and police witness statements. They were also handed to his mother, who confirmed he was home, on 7 September 2022. I have seen statements of service in relation to both. On 21 December 2022, further documents, including the notice of hearing, were given to the defendant’s mother, who again confirmed he was home.
  6. At a hearing on 22 February 2023, of which I was satisfied the defendant was aware, I deemed the application and notice of hearing and evidence in support properly served. I was also satisfied that the further witness statement of Pav Uppal dated 18 Jan 2023 was properly served, and directed further documents could be served by handing to them to the defendant’s mother.
  7. Mr Hasanzadeh didn’t attend the hearing of the application on 20 Jan 2022, though the Court was told he had contacted the claimant to say he was unable to attend court and wanted to be given more time to consider the papers. The hearing was adjourned and the claimant given permission to file and serve a schedule of allegations.
  8. At the hearing on 22 February 2023 – as I’ve said a hearing of which I know the defendant was aware – I made an order which reiterated the defendant’s rights. I firmly advised him to get legal advice. He has, as I told him, the right to remain silent, the right not to incriminate himself (that it is for the claimants to prove the breach and he does not have to help them do that), the right to legal representation and to criminal legal aid.
  9. As the notice explained, he has the right to see the evidence against him. I am satisfied he has had that opportunity.
  10. Mr Hasanzadeh has decided not to attend today. I am satisfied to the civil standard he knows of today. Ms Uppal gave brief oral evidence of a telephone call yesterday with the defendant’s father in which Ms Uppal was informed of a conversation in which the defendant was told by his father on Sunday that he had to move out. I am satisfied he was living there and that any notice served in accordance with my direction on 22 February 2023 would have come to his attention. The Certificate of Service at page 295 of the bundle shows the notice of hearing and my last order were handed to his mother.
  11. I have decided to proceed today. I have considered the defendant’s Article 6 right to a fair hearing, engaged especially where his liberty is at stake. Mr Justice Cobb (as he then was) in Sanchez v Obuz [2015] EWHC 235 (Fam) said it would be unusual but by no means exceptional to proceed. I have considered that the proceedings are essentially criminal, that they are based on findings of fact and that the Court is likely to be disadvantaged by the defendant not being here, he as at risk of a penalty of depravation of liberty, and is entitled to a fair hearing; but a fair hearing in a reasonable time. I have considered whether he was served with relevant documents including the notice of hearing. He was. I am satisfied that he knows of today. I have considered whether he has had sufficient time to prepare. He has had since last September, and certainly since February. Has any reason for his absence been advanced? No. By his behaviour has he waived his right to attend? He has failed to engage these proceedings at all. Would adjournment secure his attendance? Not based on his previous behaviour. The defendant was warned very clearly at the outset of my order of 22 February 2023 that if he failed to attend the hearing could go ahead. Does he suffer a disadvantage in not presenting his case? Yes, but there would be undue prejudice to the claimant in any further delay. This is the third hearing of the application. Counsel and solicitor are in attendance. When judges warn that the court may proceed in a party’s absence, as Cobb J said, “this is not just an idle threat”.
  12. If I am to commit Mr Hasanzadeh, I have to be satisfied by the claimant to the criminal standard that Mr Hasanzadeh has breached the order. The claimant must prove the breach beyond all reasonable doubt. In other words, it has to satisfy me on the evidence, so that I am sure, that Mr Hasanzadeh breached the order. The usual civil standard of proof – the balance of probabilities – is not enough.
  13. The only evidence before me is from the claimant. Takes the form of an affidavit of Pav Uppal dated 17 August 2022, a witness statement dated 18 January 2023 from her and MG11 police statements from PCs Ouladzahra, Pryce, Harding and Evans, all of whom attended today and confirmed their statements and in the case of Pyce and Harding answered some questions from me, Although evidence on a committal application is to be given by affidavit (CPR r 81.4), the need for affidavits was dispensed with by District Judge Parker on 20 Jan 2023. I am entitled to accept evidence in the form of these witness statements, which have statements of truth, and signed in each case, and the defendant having had them and having raised no objection to their format.
  14. The claimant proceeded only with what might be considered “counts” 1 and 3. Those are:

“1. A bag containing a machete and cannabis was discarded by the Defendant following a foot chase by Police on Bloemfontein Road W12 (which is part of the White City Estate). The foot chase by the Police occurred after the Defendant on a bike cycled through Police tape on the Police cordon despite Police calling at him to stop. The Police cordon had been in place following a recent shooting in the area earlier in the day.

3. Following on from No 1 & 2 above – Police conducted a section 18 search at [address redacted by the Court] (Defendant’s parents [sic] address and where the Defendant lives) – for an arrest made earlier for possession with intent to supply class B. During the search of the Defendant MR ASIL HASSANZADEH’s bedroom – Police found a small black plastic bag containing four and a half green ferarri [sic] pills which the Police suspected to be MDMA. …”

15. The evidence in relation to the MDMA is given by PC Ouladzahra. In his statement, he said he suspected it to be MDMA. He added orally that from previous experience, tablets of this shape and design were likely to be MDMA. But there was no evidence before me that they were tested. I cannot be satisfied so that I am sure, as I indicated during the hearing, that he was in possession of drugs, let alone that he was thereby involved in drug dealing contrary to paragraph 4 of the order.

16. As to count 1, PC Harding describes a foot chase with the defendant cycling away from him on Australia Road, past Campbell House then rejoining Bloemfontein Road, then at 50 metres distance from PC Harding throwing what strikes me as a distinctive a neon-coloured JD sports bag from his shoulder over a fence into a resident’s garden “on Bloemfontein Rd”. He says PC Pryce radioed to say he had found a neon-coloured JD Sports bag in a garden on Bloemfontein Road and that it contained a machete. When PC Harding searched it, he found “a large quantity of cannabis in a transparent plastic bag” and a meat cleaver of which there is a picture in the bundle at page 244.

17. PC Pryce had said he found the bag on a ledge at the bottom of a fence at 30 Collingbourne Road. The occupants confirmed it wasn’t theirs. I was concerned that this was not the road described by PC Harding and asked PC Harding about that. He was unable to help. I allowed the claimant to recall PC Pryce, who explained that Collingbourne Road runs parallel to, and the back gardens back onto, Bloemfontein Road. PC Pryce said when PC Harding searched the bag, he found a substantial quantity of cannabis and a loose machete.

18. I am not satisfied to criminal standard that the descriptions “large” or “substantial” quantities of cannabis necessarily connote drug dealing. They might suggest it is more likely than not, but that is not enough here. It might be that the circumstances of running from the police and having also a knife at the same time point to drug dealing activity, but it is not impossible as a gang member – which the claimants assert the defendant to be – he was carrying drugs for his own use – and a knife as has become regrettably predictable for a gang member and something for which the defendant has been twice convicted already.

19. I am therefore satisfied to the criminal standard that the breach occurred. Accordingly, the defendant is in breach of the order and in contempt. Having found Mr Hasanzadeh to be in contempt, I now have to consider sentence. Given that he has not attended today, I have to consider whether to adjourn sentence, and will hear counsel.

[After further submissions, the hearing was adjourned to 19 May 2023, for sentence]

District Judge Daley on 19 May 2023:

20. On 5 April 2023 I was satisfied to the criminal standard that Mr Hasanzadeh breached paragraph 3 of the anti-social behaviour injunction order dated 31st January 2022 and made final on 18th March 2022 namely by carrying a knife within the London Borough of Hammersmith and Fulham on the 3rd August 2022.

21. I now have to sentence Mr Hazanzadeh for that contempt. He has not attended today. I have been provided with a certificate of service which states that the defendant refused to open the door on 16 May 2023 when the proc serv attended  and the notice of hearing was posted through the door together with my orders from 5 April 2023. I infer from that that the defendant was present. 16 May is only 3 days ago, but the notice of hearing was also posted by the Court on 11 April 2023 together with my order in which I told the defendant in bold letters on the front page that he had been found in contempt of court and would be sentenced today and that if he did not attend he could be sentenced in his absence, which could include being imprisoned or fined. I strongly urged Mr Hasanzadeh to seek legal advice and to attend the hearing today, and reminded him of how to obtain legal aid.

22. For the reasons I gave on 5 April and orally earlier today, I am satisfied that I should proceed with sentencing in the defendant’s absence. He knows of the hearing. He has voluntarily absented himself again, and no adjournment is likely to secure his attendance. I am deprived of any mitigation on his behalf, but that is a result of the decisions he has taken. The public expects, and is entitled to know, that the Court means what it says when it makes orders and when it says it may proceed in someone’s absence.

23. Lovett v Wigan Borough Council [2022] EWCA Civ 1631 provides lower courts with helpful guidance on sentencing, especially at paragraph 39 onwards. In particular, it suggests the courts follow the guidelines suggested in Annex A of the Civil Justice Council Report on Anti Social Behaviour and the Civil Courts (July 2020)

24. I remind myself that the Court of Appeal set out that the objectives of sentencing are: (1) ensuring future compliance with the Order, (2) punishment, and (3) rehabilitation.

25. Two years is the maximum sentence. There is no principle that imprisonment cannot be imposed on the first occasion of breach, which this is, but it is usually appropriate to take some other course: Thorpe v Thorpe [1998] 2 FLR 127, a family case. Alternatives to imprisonment must be considered. I have to decide whether the custody threshold is met without taking into account that I might choose to suspend the order.

26. Suspension is usually the first way of attempting to secure compliance.

27. Any sentence must be just and proportionate.

28. I begin by assessing the seriousness of the breach in terms of culpability and harm. Mr Hazanzadeh can safely be taken to have deliberately had the knife in his possession. He had a large amount of cannabis in his possession. I have not found that sufficiently large to be evidence of drug dealing, but it is in itself a degree of criminality and one which may have led Mr Hasanzadeh to decide he needed to carry a knife. In any event, he deliberately cycled through police tape. His actions appear to have been designed to intimidate or to antagonise the police. The fact he threw his bag away confirms he knew that what was in it should not have been in his possession.

29. In my view, this is no minor breach but nor is it—in terms of culpability—the most serious or a persistent breach. It is the first and only breach which has been proven. I would place it towards the upper end of culpability B in the CJC guidelines.

30. As to harm, no harm was in fact caused, though I cannot disregard the fact that this was a significantly dangerous weapon. I see from exhibit RW07 (exhibit PU10 to Ms Uppal’s affidavit) that the knife, also described as a meat cleaver-style or a machete, has a blade which appears to be at least 9 or possibly 10 inches long and is a substantial weapon. Although the breach appears to have caused little harm or distress, and thus falls within category 3 of the CJC guidelines, it is probably only by good fortune that nothing more serious resulted.

31. The starting point, would be adjourned consideration. However I have adjourned sentence and the defendant has chosen not to attend. His breach was only just within category 3.

32. This is a multifactorial exercise and where a just and proportionate sentence is what I must aim at, and the brackets are not intended to be straightjackets. The defendant is at the upper end of culpability bracket B. I take as my starting point month to reflect the seriousness of the breach.

33. I increase that to take account of the serious risk that the defendant posed to the public by carrying such a knife. Carrying knives is a grave problem affecting society. We see all too often the effects. Young people may not go out wishing to murder others but can find all too easy that this is the effect of their actions. I regard the type of knife carried as a significantly aggravating factor.

34. Aside from the fact that there has been no other breach proven, there is no mitigation. The defendant has not attended on multiple occasions and has not engaged with this process. There has been no admission of breach, and therefore no credit is to be given for a guilty plea.

35. The custody threshold is clearly passed. I would impose a sentence of 6 weeks. I must consider whether to suspend the sentence. I am most tempted to. At least this may cause the defendant to reflect on what he stands to lose if he breaches again. However, given his non-engagement with the Court, it appears he is determined to ignore whatever orders the court makes. Accordingly, I see no likelihood that compliance will be secured by suspending the order.

36. Standing back and looking at the totality and ensuring that my sentence is just and proportionate, and taking into account the aggravating factors and absence of mitigation, it seems to me the lowest sentence I can impose commensurate with this breach is one of 6 weeks’ immediate custody. I have not had regard to the criminal sentencing guidelines in coming to this conclusion but as a cross-reference I take comfort from noting that the starting point in crime, where the maximum sentence is higher of course, would have been 6 months.

37. He will be entitled to be automatic release after serving half. He has the right to appeal and does not need permission to do so.