Committal for Contempt of Court: The Guinness Partnership Limited -v- Tierney

County CourtCommittal for Contempt of Court

Case Number: JS20SE001

In the County Court at Sheffield

12 December 2022

Before:
His Honour Judge Sadiq

Between:
The Guinness Partnership Limited
-v-
Mr Michael Tierney

Order

Miss Phillips, Counsel, appeared for the Claimant The Defendant appeared in person

HIS HONOUR JUDGE SADIQ:

Introduction

  1. This is a committal application for contempt brought by Claimant, a Housing Association, for the alleged breach of the term of an injunction granted by me on 24 January 2022 under s4 of the Anti -Social Behaviour Crime and Policing Act 2014. The Claimant was represented by Ms Philips of Counsel and the Defendant appeared in person. I am grateful for their assistance. ·

Background

  1. The Claimant is the owner and landlord of social housing of the property which is the subject of the •injuncti on. The Defendant’s partner, Emma Nelson, is the legal tenant of the property to which the Defendant is a frequent visitor. They have a child who is under the care of Social Services. The Claimant’s injunction application set out allegations of anti-social behavior by the Defendant including shouting, screaming and swearing and the smashing of a window at the Property.
  2. On 24 January 2022, I granted an injunction to the Claimant against the Defendant which provided that the Defendant was forbidden from (1) entering or being in the direct vicinity of Flat 1 Alga House, 46 Queen Street, Swinton, South Yorkshire S64 BNA {“The Property), and (2) engaging or threatening to engage in abusive, insulting, threatening and intimidating behaviour likely to cause alarm or distress to any person residing at the Property. A power of arrest was attached to both paragraphs, and the injunction was to last for 12 months until 12 noon on 24 January 2023. The Defendant was personally served with a copy of the injunction at the hearing on 24 January 2022.
  1. On 8 June 2022, the Defendant was arrested for allegedly breaching the injunction terms and brought before the court on 9 June 2022. He was reminded of his right to remain silent and also the risk that adverse inferences may be drawn from his silence. The Defendant was also reminded of his right to seek legal advice and legal aid. He admitted entering the Property on 8 June 2022 in breach of the injunction term not to. He alleged that Ms Nelson, his partner had been suffering from epileptic fits and that she was his career. The Defendant was remanded on bail subject to the conditions based on the injunction terms and the case was adjourned to be considered again at 10am on 23 June 2022 for directions to be given. On 23 June 2022, the Defendant attended court late at 10:35am. At 2:00pm, the court considered the case again and I revoked the bench warrant for the Defendant’s arrest and gave directions for the committal hearing listed for 8 August 2022. I ordered that personal service of the order, the Claimant’s Scott Schedule, the Claimant’s witness statements and evidence in support be dispensed with. On 29 July 2022, the Claimant served the committal application on the Defendant. The Claimant’s witness statements and supporting evidence was served on the Defendant on 6 July 2022 and 14 July 2022 respectfully.
  2. On 8 August 2022, the committal application was listed before me. The Defendant did not attend the hearing. However, the application was adjourned because there was inadequate time to read into and deal with the case and the court made directions for the case to be re­ listed before me on 2 September 2022 with a time estimate of one day. On 19 August 2022, the Defendant was served with the amended Scott Schedule, the Claimant’s s paginated bundle of documents and a further witness statement from Michael McNicholas. The Defendant did not serve any witness statements and supporting evidence in rebuttal, but of course he was not obliged to.

The 2 September 2022 Committal Application

  1. The Claimant’s amended Scott Schedule of breaches of the ASBI injunction contained 11 breaches. Between 31 January 2022 to 9 June 2022, it was alleged that the Defendant had breached the injunction term by (1) attending the Property and (2) engaging in abusive, ins ulting , threatenjng and intimidating behavior.
  2. I was lenient to the Defendant in terms of his previous alleged breaches. I only found 1 of the 11 breaches proven to the criminal standard, beyond reasonable doubt, namely Allegation 9. This was because most of the Claimant ‘ s evidence amounted to hearsay evidence and the residents had not been called to give oral evidence in support of the alleged breaches it being suggested they were fearful of repercussions from the Defendant. Further, no complaint log s had been disclosed by the Claimant in support of the allegations. Allegation 9 which I did find proven was that on 8 June 2022 at 23:S0pm the police received a report that the Defendant had turned up at the Property intoxicated, the police attended and found the Defendant in the Property in possession of a knife and he was arrested and taken into custody. I was satisfied so that I was sure that the facts alleged in Allegation 9 were proven and as a result the Defendant had breached the injunction term not to attend the Property and not to engage in abusive, insulting, threatening and intimidating behaviour likely to cause alarm or distress to any person residing at the property. I accepted the evidence of PC Wykes that on 8 June 2022 at @23:30pm he attended the Property with his colleague in response to a phone call from the Defendant’s partner to find the Defendant inside the Property, heavily intoxicated and in possession of a shiny metal object that resembled a knife. The Defendant was repeatedly shouting and swearing and had to be placed in handcuffs. The Defendant was arrested for breaching the termss of the injunction order.

Suspended sentence

  1. Applying the applicable guidelines prepared by the Sentencing Council concerned with breach of a Criminal Behaviour Order, which were effective from 1 October 2018, for the breach on 8 June 2022 I found that that the Defendant’s behaviour fell within culpability Band B (since it involved a deliberate breach falling between A and C) and within Category 2 for harm (the Defendant was found intoxicated and in possession of a sharp object, probably a knife, and was shouting and swearing which could be heard by the neighbours). Regarding Step 2, the starting point for a Category 2 offence with Culpability level of Band B is 12 weeks custody to a maximum of 1 years custody. I took into account the following aggravating factors: (1) that this was a deliberate breach of the injunction order and (2) the Defendant had resisted arrest. Regarding mitigating factors, I too into account: (1) that only one of the 11 Allegations bad been found proven to the criminal standard. I rejected the Defendant’s earlier mitigation that he attended the Property on 8 June 2022 because Emma Nelson, his partner, was suffering from epileptic fits and she was his carer. No evidence, medical or otherwise, was provided in support. I found that the appropriate period of imprisonment was 10 weeks. I reduced the penalty to reflect the Defendant’s admission that he attended the Property on 8 June 2022 in breach of the injunction term. Therefore, I found the appropriate period of imprisonment was 8 weeks. Taking into account the time spent by the Defendant on remand, which was one day (on 8 June 2022), and doubling that period to 2 days and then deducting that from the period of 8 weeks imprisonment, meant that the effective custodial term was 7 weeks and 5 days.
  2. I decided in the circumstances that it would be appropriate to suspend the sentence. This was to secure the objectives of future compliance with the terms of the injunction order going forward, and rehabilitation. Therefore, I imposed a sentence of 7 weeks and 5 days to be suspended on terms that the Defendant complied with the terms of the injunction going forward and the period of suspension would be co. terminus with the term of the injunction
    i.e. until 12 noon 24 January 2023. The Defendant was entitled to appeal this sentence without permission to the High Court within 21 days of the order reflecting my judgment. The Defendant did not appeal my order/sentece.

The further breach

  1. At 04:25am on 11 November 2022, within the suspension period, the Defendant was arrested for allegedly breaching the injunction term not to enter the Property and brought before the court on 11 November 2022. The breach was corroborated by a witness statement from the arresting officer, PO France, dated 11 November 2022. At the hearing before me, the Defendant was reminded of his right to remain silent and not to say anything. He was also remined of his right to legal advice and that he might be entitled to Legal Aid. The Defendant admitted entering the Property on 11 November 2022 in breach of the injunction term not to. He alleged that his son had died on 6 November 2022 and that his partner, Ms Nelson, was his carer. There was no independent corroborative evidence of either matter. The Defendant was remanded in custody for 4 days until 10:00am 15 November 2022 because there were substantial grounds for believing that if released he would commit an offence on bail namely he would breach the injunction order by attending the Property. I gave directions for the committal hearing for the 12 December 2022. I made it clear in the court order that at that hearing the court would consider the breach on 11 November 2022 as well as activating the suspended sentence. I directed that the Claimant’s committal application, Scott Schedule and any witness statements be personally served on the Defendant al the address he had given. I also directed that the Defendant may serve on the Claimant any witness statements and documents. A copy of the court order dated 11 November 2022 was person.ally served on the Defendant at court on the same date.

The Committal Hearing on 12 December 2022

  1. On 17 December 2022, a copy of the Claimant’s committal application, Scott Schedule and a witness statement from PO France was posted through the Defendant’s postbox at the address given because personal service was unable to be affected At the committal hearing on 12 December 2022, I ordered personal service be dispensed with and personal delivery be substituted effective on 19 November 2022 namely on the second day after delivery , pursuant to CPR 6.15 and CPR 6.27. The Defendant had not served any witness statements or documents in rebuttal by the time directed, but of course he was not obliged to do so. However, on the day of the hearing he disclosed a document headed ‘Mental Health Care Plan’ dated 23 September 2022 from his GP, which I read.
  2. As stated earlier, the Defendant had admitted breaching the injunction order by attending the Property on 11 November 2022. The evidence filed in support of the committal application consisted of a witness statement from PO France. He gave direct evidence regarding the breach of the injunction term on 11 November 2022. He was not called to give oral evidence because of the Defendant’s earlier admission.
  3. Al the outset of the hearing, I advised the Defendant that he had the right to remain silent and also the risk that adverse inferences may be drawn from his silence. I also reminded the Defendant that if he chose to say anything, he had a right against self-incrimination. The Defendant was also reminded of his right to legal advice and legal aid. Despite these reminders, again the Defendant admitted entering the property on 11 November 2022 in breach of the injunction term not to. This time he told me that his son had in fact died on 6 November 201 2, not 2022 as previously alleged, and that he had attended the Property around the anniversary of his son’s death. He maintained his previous mitigation that his partner, Ms Nelson, was his carer. The Defendant told me that he was in a “dark place” at the time.

Legal principles

  1. I apply the criminal standard of proof to the breach i.e. beyond reasonable doubt. I have to be satisfied to the criminal standard that the Defendant knew about the injunction terms and that he carried out acts which were in breach of the injunction tenns – see Kea Investments Ltd v Wat son [2020] EWHC 2599 (Ch), per Nugee LI at [19].
  2. I am satisfied that the Defendant has capacity. Capacity is presumed unless proven otherwise. There is no evidence before me that the Defendant lacks capacity.

Findings in relation to Committal Application

  1. I now tum to the specific breach against Defendant. Where I say that I am satisfied that I am sure that the allegation has been proved, I mean that I am satisfied beyond reasonable doubt. I take into account the evidence before me.including the evidence of the Defendant and the arguments presented by the Defendant in his defence.
  2. The allegation is that on 11 November 2022 at 03:49am the police received a report that the Defendant was the Property in breach of the injunction order. The police attended and found the Defendant lying down in a bedroom and he was arrested for breaching the injunction order and taken into custody. I am satisfied so that I am sure that the facts alleged have been proven and as a result the Defendant has breached the injunction term not to attend the Property. Although PO France was not called to give oral evidence, the contents of his witness stat ement were unchallenged. Further, the Defendant admitted attending the Property on 11 November 2022 and he was arrested for breaching the injunction order.
  3. For all these reasons, I find that the breach on 11 November 2022 has been proven to the criminal standard namely beyond reasonable doubt.

Sentence

  1. The first question is whether I should activate the suspended sentence. I have a discretion whether or not to activate the suspended sentence. I have considered the guidance given by Sir Thomas Bingham MR in Villiers v Villers [1994] 1 WLR 493 where he considered suspended sentences in the context of contempt proceedings. At page 498, the Master of the Rolls referred to the principle drawn from the decision in Re W(B)(an Infant) [1969] 2 Ch.50:

    ” … It emerges clearly from. the judgments of Lord Denning MR and Russell Ll with which Winn LJ agreed that the court is not obliged to activate a suspended sentence upon mere proof of breach of the suspensory condition. The judge has a discretion, taking into account both the past and current situation and the gravity of the breach, either to activate the original sentence or to impose a reduced sentence or a fine or not to punish at all. In other words, there is nothing automatic about the activation of a suspended sentence, and it involves an exercise of judicial judgment on the occasion when the issue of activation arises.”
  1. Regarding the further breach, the Defendant has admitted breaching the injunction by attending the Property on 11 November 2022. In mitigation, he now alleges that his son had in fact died on 6 November 2012 and that he had attended the Property around the anniversary of his son’s death. He maintained that his partner, Ms Nelson, was his carer. However, no objective evidence has been provided to corroborate the death of the Defendant’s son save for a reference to the Defendant’s late son in the Defendant’s Mental Health Care Plan dated 23 September 2022. Further, the Defendant now tells me that his son in fact died on 6 November 2012, not in 2022 as previously suggested. Even if it is true that the Defendant’s son had in fact died, this is not an adequate reason for breaching the injunction order. Grieving parents can grieve without returning to the Property in breach of a court’s order. As regards the suggestion that the Defendant’s partner, Emma Nelson is his carer, save for a reference to the Defendant’s partner also being his carer in the Defendant’s Mental Health Care Plan dated 23 September 2022, no objective evidence has been provided in support despite this suggestion being raised by the Defendant for the first time at the hearing before me on 8 June 2022. Further, the Defendant has made no application todischarge the injunction on this basis since it was imposed on 24 January 2022. Therefore, I find that this was a deliberate breach of the injunction order. Accordingly, I have come to the conclusion that the suspended sentence should be activated for the following reasons:
  2. (i) the further breach was deliberate and no adequate explanation has been given for attending the Property in breach of the injunction order, and (ii) to mark the court’s disapproval of the Defendant’s disobedience of the court’s order and to secure future compliance. The whole point of a suspended order is that there should a real and credible threat that the sentence will come into effect if one of the conditions is not met. I had hoped that when I made the suspended order on the last occasion that the consequence of making the order would be to impress on the Defendant’s mind that he should desist from breaching the injunction. Sadly, that has not been the cas . In all the circumstances, the original sentence of 7 weeks and 5 days is activated.
  1. The next question is whether I should impose a separate penalty for the breach on 11 November 2022. I take account of the following mitigation: (i) the breach was not connected with any anti-social behaviour on the Defendant’s part, and (ii) since the imposition of the suspended sentence on 2 September2022, there has been only one further breach. On balance, it is a sufficient penalty to activate the suspended sentence and I have decided not to impose any further penalty for the breach on 11 November 2022. The Defendant should consider himself lucky that no further penalty has been imposed for the breach on 11 November 2022.
  2. I must give credit for the time the Defendant has spent on remand, which is 4 days (11 November 2022 to 15 December 2022). Because of the effect of s258 of the Civil Justice Act 2003, I must double that period to 8 days and deduct that from the period of 7 weeks and 5 days. Accordingly, the effective custodial sentence is 6 weeks and 4 days. The Defendant will be entitled to be released from prison having served half this sentence. The Defendant is entitled to appeal this sentence without permission. The appellate court is the High Court. Any appeal must be commenced within 21 days of the order reflecting this judgment. The Defendant has the right to apply to purge the contempt.
  3. Custody officer, please take the Defendant into custody.