Case No: H00BM082
In Birmingham County Court
8 September 2021
His Honour Judge Murch
Midland Heart Ltd
Ms Queenie Djan appeared on behalf of Midland Heart Limited.
The defendant did not appear and was not represented.
1. Having determined that I shall consider the Claimant’s application to commit the Defendant in her absence, the reasons for which I shall not repeat, I am now concerned with a schedule of six allegations of breach of an injunction made on 11 January 2021.
2. The allegations run from 25th April 2021 through to, as listed, 11th May2021. Allegations 1 to 4 allege the playing of loud music, and allegation 6 similarly alleging the playing of loud music.
3. Allegation 5 reads in the following terms:
On 5 May 2021, Ms Tetteh was arguing with and using threatening, offensive and abusive language towards another resident of Pike Close. Further Ms Tetteh was shouting loud at an excessive volume that caused a nuisance, annoyance and/or distress to the other residents of Pike Close in breach of clauses 2 and 3 of the order.
4. Now, the Claimant accepts there is a difficulty here because although reference is made to 5th May, it should, in fact, be reference to 18th May. There is no formal application before me today and of which the Defendant has notice to amend the fifth allegation. Given the nature of these proceedings and given the Claimant is before me today without the Defendant being in court, I have not allowed it to make an application to amend allegation 5. Therefore, reliance is placed upon allegations 1 to 4 and allegation 6 as well.
5. The background, perhaps, is to set out the terms of the injunction which were made by Deputy Judge Leong in this court in January of this year. This was made on a without notice basis on 11th January 2021. The point remains that the return date has been adjourned until after the hearing of various committal applications but, nonetheless, even though it is an interim injunction, it still has the consequences of a final injunction, and it is binding on the Defendant.
6. The injunction prevents the following activities, which I read for completeness for the benefit of this judgment. Paragraph 1 provides:
The Defendant is forbidden from using physical threats or violence; intimidating, or attempting to intimidate, any occupier or resident at Pike Close, Handsworth, Birmingham, West Midland, B20 2FE, any employee, contractual agent of Midland Heart or anyone engaged in lawful activity at 16 Pike Close.
7. Paragraph 2 prevents the Defendant from:
Using threatening, offensive, abusive or racist language against: (a) any occupier or resident at Pike Close; (b) any employee, contractual agent of Midland Heart; and (c) anyone engaged in lawful activity at 16 Pike Close.
8. Paragraph 3 is a clause which prevents the Defendant from:
Causing nuisance, annoyance or distress to any of the following: (a) any occupier or resident at Pike Close, Handsworth, Birmingham; (b) any person engaged in lawful activity at 16 Pike Close, Birmingham, West Midlands.
9. Paragraph 4 prevents the defendant from:
Causing or allowing excessive noise that can be heard at such a volume that it can be heard outside of 16 Pike Close, Handsworth, Birmingham.
10. Paragraph 5 is not relevant for the purposes of today’s application.
11. I shall deal now with each of the allegations of breach which have been made by the Claimants in the application to commit.
12. The first allegation is that, on 25th April 2021, Ms Tetteh was playing loud music at 1.41 a.m. at an excessive volume such that it could be heard outside the property in breach of clause 4 of the order.
13. The second allegation is that, on 29th April 2021, Ms Tetteh was playing loud music at 1.25 a.m. at an excessive volume such that it could be heard outside a property in breach of clause 4 of the order.
14. Allegation 3 provides that on 30th April 2021, Ms Tetteh was playing loud music at 00.40 a.m. at an excessive volume such that it could be heard outside a property in breach of clause 4 of the order.
15. Allegation 4 states that on 1st May 2021, Ms Tetteh was playing loud music at 1.40 a.m. at an excessive volume such that it could be heard outside a property in breach of clause 4 of the order.
16. Then finally allegation 6: on 11th May 2021, Ms Tetteh was playing loud music at 10.40 p.m. at an excessive volume such that it could be heard outside a property in breach of clause 4 of the order.
17. I have heard evidence from two witnesses on behalf of the Claimant, witness statements which were served pursuant to the order of Her Honour Judge Ingram, to which I referred in my first judgment earlier today.
18. First, I heard from Ms Priscilla Ambyton, who is the tenancy services officer employed by the Claimant. She gives evidence in support of each of the alleged breaches of the injunction order. It is important to note that Ms Ambyton was quite candid with me. She had no direct knowledge of the noise of which a complaint is made. She simply records what she is told by e mail sent to her by various occupants of the block in which the Defendant lives. There is no evidence of those e mails before me today. They are not appended to the witness statement. What there is, in relation to 30th April 2021, is a short, statement from one Sajid Ali Kureshi. He is a member of the Safety Net Office, who will go out if a complaint is made by a neighbour, that noise being made by any occupant. It is signed but does not have a statement of truth attached to it. The Statement of Mr Kureshi dated 18th May reads as follows:
We received password activation call/e mail from control room at 01.11 on 30th April 2021 regarding loud noise nuisance from mentioned property. We arrived at the address at 1.29 to 1.35, (estimated time) on 30th April 2021. We noticed a strange voices coming from mentioned property which were not very loud. After a few minutes, our team arrived for support due to the nature of referral request. After a few minutes, loud music started from mentioned property. We knocked on the door of the property with a body cam on. The lady tenant of the property did not open the door, but the music stopped. Afterwards, we conducted close observation of mentioned property for 25 minutes, but during this time of period, we did not hear any loud music or any other form of noise nuisance. Then we left the area.
19. I remind myself what I have read is signed but does not have a statement of truth and the consequences of a statement which is not true being recorded in it.
20. I do, however, have the evidence of Ms Anderson, who is a resident in the block in which the Defendant lives. The Claimant sought to rely upon the statement which she made to the police. I record the following points: the statement before me is not personally signed by Ms Anderson but it bears the following introduction:
This statement, consisting of two pages, each signed by me, is true to the best of my knowledge and belief and I make it knowing that, if tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true. This statement has been taken over the telephone by Ranbir Raj on 1st May 2021. The declaration above has been read over and explained to me, and I understand the statement may be used to court as evidence.
21. It is fair to note that when Her Honour Judge Ingram, on 27th May, gave permission for the Claimant to rely upon the statement, there is no particular reference to the fact that it was not signed; it was signed at the direction, as it were, by Ranvir Rai.
22. Having heard Ms Anderson give evidence on oath this morning, I am satisfied that she intends to be bound by this witness statement and that it contains her evidence on which she asked me to rely. The following appears:
On 30th April 2021, at 0040, I was sleeping in my home and was awoken by loud music. I got up and turned my house lamp off so I could go into the living room, and then got the keys to open the back door and see where the music was coming from. I looked around in the back garden and could see the lights on at No.16, music coming from there. I could hear the music clearly. I recognised the music playing as Beyonce. I then recorded music on an app given by Midland Heart so they can see any incidents arise in the property. At about 0101, I called the Safety Net Team to inform them of the incident. Sometimes they come out to me; sometimes not. Usually, Priscilla from Midland Heart would chase that up and get back to me. I then called the police at 01.06 a.m. I explained the situation over the phone and that there is currently an injunction in place and that she is in breach of this by playing loud music. I was given reference 102, 3rd April 2021.
On Saturday, 1st May 2021, at 0140, I was sleeping in my bed and was again awoken by loud music and bass I got up again and recorded it on the app again to send to Midland again. I called the Safety Net Team at 0148 a.m. and then called the police at 0150 a.m. I was given another reference number, which is 281 of 1st May 2021. I was lying in bed to listen out for the door in case the police turned up or the Safety Net Team. I was in bed and tried to zone out and fall back asleep, so I am not sure what time the music went on till, and that is the same for the previous night.
23. Having considered that evidence, I can be satisfied so that I am sure that the Claimant has shown that the Defendant has breached the terms much the injunction made by Deputy Judge Long on 1st January 2021.
24. I intend no disrespect to Ms Ambyton when I remind myself that she has no direct knowledge of the incidents on which she refers in her witness statement. I am satisfied that she has given evidence truthfully to the best of her knowledge and belief, but I have to be satisfied so that I am sure and that it has been shown that on the occasions upon which she relies, the Defendant was the person who was playing any loud music. I think I cannot be satisfied so that I am sure in relation to each of the incidents upon which Ms Ambyton alone gives evidence.
25. The situation is different, though, in relation to the allegation on 30th April 2021 and 1st May where the dates and times corroborated by the evidence of Ms Anderson. I am, therefore, satisfied so that I am sure that the Claimant has shown that, on 30th April and 1st May 2021, Ms Tetteh was playing loud music at the times mentioned in the schedule of allegations at such an excessive volume that it could be heard outside the property, and that amounts to breach 4 of the clause of the injunction made by Deputy District Judge Long. I, therefore, find the allegations 3 and 4 have been made out but that allegations 1, 2, 5 and 6 have not been shown so I can be satisfied so that I am sure.
1. I shall now consider the disposal of the case, having found two allegations of breach proved, reminding myself, for the purposes of this exercise, of the terms of the injunction which I have found proved. I have found it proved that on 30th April 2021, Ms Tetteh was playing loud music at 0.40 a.m. at an excessive volume such it could be heard outside of her property. I have also found it proved that on 1st May Ms Tetteh was playing loud music at 1.40 a.m. at an excessive volume such that it can be heard outside of her property in breach of clause 4 of the injunction made by Deputy District Judge Leong on 11 January 2021. Important context for considering the question of sentence is the fact that on 5th February 2021, the Defendant was found to have breached the order of Judge Long on 15th January 2021 between 2200 hours and 0240. The Defendant was playing music at such volume it could be heard outside 16 Pike Close in breach of paragraphs 3 and 4 of the injunction, and then on 17th January it was found proved that between 10 o’clock and 6 in the morning, the Defendant was playing music at such volume it could be heard outside of 16 Pike Close, Handsworth. For those two breaches found proved, His Honour Judge Foster sentenced the Defendant to a period of 28 days’ imprisonment. The order reads:
Suspended until 11th January 2021.
2. However, I think it is clear from the context given over the page that it says the sentence is suspended until 11th January 2022 that this is what was intended. The meaning of the order is clear. To the extent that it is necessary, under the slip rule, to amend the front page of that order given that the Defendant was present in court and knew what was being set out, I would so amend it.
3. I have regard, of course, to the Breach Offences Definitive Guidelines from the Sentencing Council. The first step I need to undertake is determine the category of the category. It is pressed upon me by the Claimant that this is a culpability B, a deliberate breach falling between A and C. It is neither a very serious nor persistent breach, neither is it a minor breach, just sort of reasonable excuse. As to the question of harm, it is suggested that this is category 3, a breach causing little or no harm or distress, a breach demonstrating continuous minor or anti social behaviour. I think the submissions are well made, if I may say. The concern is that relatively soon after the order of His Honour Judge Foster, the Defendant, I have found, breached the order on two occasions, one day after the order. I am satisfied under the first step of the analysis, which I need to carry out, that this falls within B3 the category range, therefore, is a high-level community order ranging up to 26 weeks’ custody.
4. I then have to consider whether there are any aggravating factors to the breaches which impact upon sentence. I think that the important factor is this is a further breach following earlier proceedings, also the fact that the evidence in the witness statement of Ms Anderson sets out the effect this is having upon her as a neighbour in the block. She said:
I feel totally exasperated by it all. She has got no regard for other tenants. She has been playing it two nights running. Two nights of constant lack of sleep. I want a nice quiet bank holiday week to relax but it hasn’t happened.
5. The point is made again in relation to 1st May incident. This is a serious matter. The Defendant has not attended today to give any mitigating factors for a reduction in the sentence. As I say, I have had drawn my attention to the fact that she was sectioned under the Mental Health Act but was released and there is no evidence before me that she lacks capacity or that there is any other reason for the behaviour in which she is engaging. She has not come to court today to explain whether there was any link to which I should have regard in determining questions of sentence. There is no guilty plea in this case. I have to consider first whether I should be activating the sentence of His Honour Judge Foster, namely for a period of 28 days’ imprisonment. Having decided that, and if I decide to do so, I then need to consider the totality principle. Standing back I need to ask myself whether for the two breaches proved before His Honour Judge Foster and the two breaches I found proved, a sentence of 28 days is adequate punishment for the breach of the court’s order.
6. I remind myself for the purposes of the sentencing exercise it is to ensure there is compliance of court orders. I intend no disrespect to Ms Anderson. I say the effect upon her is but one factor to which I have to have regard. I also have to have regard to the fact that this is a breach of a court order made for the purposes of protecting people like Ms Anderson and other residents of the block. I am satisfied it is appropriate to engage the suspended sentence imposed by His Honour Judge Foster and sentence the Defendant to a period of 28 days’ imprisonment. Standing back, though, I think the totality principle requires me to do no more than that in respect of the breaches on the last occasion and the breaches I have found proven as well. That, in my mind, reflects both the effect upon the residents in the block Ms Anderson being an example and it impresses on Ms Tetteh, I hope, the importance of complying with court orders. It also ensures that the Court makes clear the nature of the breach warrants a term of imprisonment and, for those reasons, I sentence the Defendant to 28 days’ imprisonment. It may be, of course, she applies to purge her contempt. That is a matter, if she does so, as and when it happens.