Committal for Contempt of Court: West Midlands Police -v- Ismail
Claim number: H00BM604
In the County Court at Birmingham, sitting in the Crown Court Building in Birmingham
27 June 2023
Before:
His Honour Judge Murch
Between:
Chief Constable of West Midlands Police
-v-
Mazary Ismail
Order
THE JUDGE: This is an application for an order of committal order in respect of Mazary Ismail who is the subject of an injunction made by me under section 34 of the Policing and Crime Act 2009. I concluded that Mr Ismail had been a member or associate of the RB7 gang operating in Coventry and that he had engaged, encouraged or assisted in gang-related violence and drug-dealing activities. On 21 November 2022, following a trial in which Mr Ismail did not take part having previously been the subject of a debarring order made by the then Recorder Burns, I made an injunction the terms which I do not read out in full for the purposes of this judgment. A short summary is that there are parts of Coventry into which he is not allowed to enter without the prior written permission of the Coventry Organised Crime and Gangs Team. He is not to associate or communicate with certain named people and he is not to have more than one mobile phone about his person at any one time. The areas into which he must not enter are marked on five plans attached to the injunction and identified as Zone A through to Zone E.
It is accepted by Mr Ismail that he has been served with the injunction. His position before this court is that he has not fully appreciated what the injunction meant. The matter came before me in March of this year. I was persuaded on the basis that Mr Ismail accepted each of the alleged breaches which I shall set out that it was appropriate to adjourn sentence for the purposes of seeing whether he could show that he was able to comply with the terms of the order which I have made. I record that since that hearing, he has not been the subject of any further allegations of breach.
He has not appeared before the court in person this afternoon. I make clear that he was not the subject of bail conditions to do so. The order by which the question of sentencing was to be adjourned did make clear that it was open to the court to issue a warrant for his arrest if he did not attend. I have not been invited to do that. On his behalf Ms Paul, who represents him, says he was admitted to hospital yesterday and is unable therefore to come to court. The evidence in support of that is scant, I have to say, but neither party objected to my proceeding in the defendant’s absence given the nature of the breaches which are before me.
The breaches are four in number. They are as follows. First on 12 February 2022 at approximately 2051 the defendant was seen by one PCSO Clarke in McDonald’s at 26 Cross Cheaping in Coventry; that is in Zone A as delineated in the injunction which I made. Second, on 2 March 2023 the defendant was seen outside Raglan Court, Raglan Street, Coventry along with a parked white CS Leon registered in his name. He was identified in body-worn video by PC Jeffrey; that is a location in Zone C as delineated in the injunction which I made. Third, on 4 March 2023 the defendant was stopped by PC Sajid and another officer in Far Gosford Street, Coventry near a white Fiat Leon, which was uninsured and parked on double red lines. That location is in Zone B. Finally, during the course of that incident on 4 March 2023, the defendant and his car were searched and he was found to be in possession of a Nokia burner phone, an iPhone and £209.50 in cash and in a black carrier bag in the centre console of the car there was also an Alcatel burner phone and five small white wraps.
The defendant was, therefore, arrested in possession of class A drugs with intent to supply. The claimant brought this application on the basis that the defendant has breached the terms of the injunction preventing him from accessing or entering certain parts of Coventry and holding more than one telephone. The defendant’s admissions of breach go no further than that. I am not imposing any sentence in relation to the allegation of possession of Class A drugs or any other activity.
The injunction was made for the stated purpose of the 2009 Act, namely the breaking up of gangs. It is a very serious matter that on four occasions shortly after being served with the injunction the defendant was found to be in the areas where he was told not to be. Counsel are in agreement that the guidance of the Court of Appeal in Lovett v Wigan Borough Council [2022] EWCA Civ 1631 is not directly in point because that deals with injunctions being under the 2014 Act which address anti-social behaviour.
This is a more serious matter: the Policing and Crime Act 2009 intends to stop the evil of gangs and the conduct of gangs in and around the Coventry area specifically in this case. I remind myself that the only allegations made against this defendant are not specifically engaging in gang behaviour, rather being in areas where he should not be. I remind myself that at the first hearing the defendant accepted and admitted each of the breaches. He is, therefore, entitled to a degree of credit, 33 per cent as a result of having done so. I am reminded of the authorities that the duty is upon a defendant to obey the court order unless and until he has it set aside or varied. An application, I understand, is to be made. It has not yet been entertained even less granted and this injunction very much remains in force.
My attention was drawn to the Court of Appeal case in McKendrick v Financial Conduct Authority [2019] 4 WLR 65 where the court made clear that breach of a court order was always a serious matter because it undermines the administration of justice and that I must have regard to this deciding which sentence to impose. Culpability in this case strikes me as reasonably high. If I were to apply the Sentencing Council’s Guidelines for Breach Offences, I would likely regard his conduct as culpability B. It strikes me that the defendant has shown a disregard to the order which has been imposed.
That said, the harm which is caused if that were under consideration would be category 3. Having regard to the fact that these are serious matters I conclude a sentence of imprisonment is justified and for each of the breaches I will impose a term of three weeks’ imprisonment. Credit for one week is due in the light of the early admission, therefore, two weeks will be passed for each of the breaches. I need to stand back and ask myself what the totality of the conduct merits. These were a series of breaches in quite quick succession; they are each quite similar in nature. Standing back I am satisfied that a sentence of three weeks, suspended for the duration of the order is the appropriate sentence in this case. I suspend it having reminded myself the defendant has not been accused of any further breaches since the hearing before me in March of this year. To that extent the injunction appears to be securing its purpose. To leave a clear message in the defendant’s mind it strikes me that is appropriate to me to pass a sentence of three weeks’ imprisonment, suspended for the duration of the order. I ask counsel to draw up an order giving effect to that sentence and for arrangements to be made for the order to be served on the defendant. It strikes me the wording will be, “The defendant is sentenced to a term of imprisonment of three weeks, suspended for the duration of the order, namely 23 November 2024 unless in the meantime the order is set aside”.
I say because, of course, there will be the one-year review, will there not? It may be a judge is persuaded not to continue the injunction beyond that date. If everyone is satisfied about that, I invite you to draw the order accordingly.
FEMALE SPEAKER 1: I’m grateful, your Honour.
THE JUDGE: I shall leave you to identify the appropriate words to convey that. The defendant is not present. His counsel does not need me to point out, although I am obliged to do so, that he has a right of appeal against the sentence I have imposed. He does not require the permission of this court or the Court of Appeal. My sentencing remarks will be published in the usual way at public expense.
Is there anything I did not deal with or anything that needs correction?
FEMALE SPEAKER 1: No thank you.
THE JUDGE: Thank you very much. Any further application?
FEMALE SPEAKER 1: Nothing from your Honour.