Case No: B 01 BR 106
In The Bromley County Court
Kent BR1 3PX
District Judge Brooks
Affinity Sutton Homes Limited – Claimant
Marks – Defendant
- Following a committal hearing on 16th August of this year I found the allegations which the claimant asked me to consider in the Scott Schedule proved. There were certain allegations which related to matters between 30th November 2015 and May 2016. This followed the court granting to the claimant, who is a social landlord, an injunction on 19th June 2015.
- Marks did not turn up at that hearing. I dealt with his non‑attendance then. Having found the matters proved, I then ordered his arrest under section 38 of the County Courts Act 1984, and he was brought before me. The claimant was represented at that hearing by one of its housing managers, Ms. Littley, who was also a witness in these proceedings and I adjourned the matter to today to allow Mr. Marks the opportunity to obtain legal aid. Ms. Lidley attended and I adjourned the matter and bailed Mr. Marks to attend today. In addition, I gave him the number for Hodge Jones & Allen solicitors who I knew might consider representing him as they had appeared before me and represented a defendant on another contempt application. I did say to Mr. Marks that he could go to any solicitor which he chose, but sometimes that it was quite difficult for the solicitors to understand the process because this is a civil matter where the criminal jurisdiction is being invoked and some solicitors did not understand. However, Hodge Jones & Allen did and that might speed the process through. He took the number and he went away. I know from correspondence which I have seen on the file that he contacted them, but today they do not appear and do not represent him. As I understand it from Mr. Marks that they would not represent his best interests, so he has had an opportunity to instruct solicitors, but has chosen not to instruct Hodge Jones & Allen or in fact any other solicitor. He represents himself today. Mr. Pearson represents Affinity Sutton Homes Limited.
- When dealing with committal for contempt I remind myself of the comment made in Solihull Metropolitan Borough Council v Willoughby where at paragraph 19 the case of Hale v Tanner is mentioned by Lady Justice Hale, as she then was, where she gave some guidance on the sentencing for contempt. She set out 10 matters which I will now go through. The first one is that imprisonment is not to be regarded as an automatic consequence of a finding of breach. Secondly, is that the range of sentencing options is more limited than in crime. The court can consider the alternative to custody, i.e. adjourning the hearing, making a court order, imposing a fine and consider orders under the Mental Health Act 1983. Thirdly, if imprisonment is appropriate the length of the committal should be decided without reference to whether or not it should be suspended. Another period of committal is not justified because it is to be custodial. Fourthly, that the length of sentence depends upon the court’s two objectives; (i) to mark disapproval or disobedience and (ii) to secure future compliance with the order. The seriousness of what has taken place is to be viewed in the light of that as well as for its own intrinsic value. Fifthly, that the length of the sentence must bear some reasonable relationship to the matter and a sentence of two years which is the maximum here. Six, a suspension is possible in a much wider range of circumstances than is it in criminal cases. It does not have to be the exceptional case. It is usually the first way of attempting to secure compliance. Secondly, the length of suspension requires separate consideration although it is often appropriate for it to be linked to continued compliance with the order underlying committal. Eight, the court must bear in mind the emotional context within which the breach has occurred. Nine, the court cannot ignore the impact of parallel proceedings in another court based on some or all of the same fact the which support the committal. The contemptor should not suffer punishment twice for the same event. That is relevant here because of the seven allegations, three of them relate to the matters which took place on 6th May 2016, I believe, where Mr. Marks has sentenced to 14 weeks in prison, seven of which he served. Ten, that the court should give very brief reasons for the contemptor to know why the sentence is imprisonment; (ii) the length and (iii) if it is to be suspended, why suspension must be imposed in that way. I will also have to take into account if I decide to go down the custodial route, the time spent on remand although that is not relevant here.
- In Hale v Tanner, which I have already mentioned, three objective were put forward for the court to consider, punishment for the breach, to secure compliance with the court order and if possible also rehabilitation. In that case they also went to say that the order should reflect the aggravating and mitigating features of the breach, the list would include whether the breach was deliberate, flouting or on repeated occasions and mitigating factors may include personal inadequacy, admissions of breach, a low level of antisocial behaviour or efforts to reform.
- My attention has also been drawn to the sentencing guidelines. Under the heading, “Breach of an Antisocial Behaviour Order”, there is a box on the sentencing guidelines which sets out the matters which the court should use as a starting point where under the heading, “Nature of Failure and Harm”, there is a serious category and lesser degree and no harassment.
- Before I come to those in detail, I just want to reflect on the order which was made on 19th June 2015. I thought I should highlight the fact that that order was made after the claimant relied upon evidence that there been a number of breaches or antisocial behaviour by Mr. Marks over a period of time. After looking at that evidence, the court granted the injunction on 19th June which forbade Mr. Marks in engaging or threatening to engage in conduct which causes or is capable of causing a nuisance or annoyance to any person employed in the connection with the exercise of the claimant’s housing function and should not use abusive or insulting behaviour against any such person and using threatening violence against such a person. It was clear to me on 16th August this year that all of the allegations complained of, there were seven in total and were proved to the requisite standard. Whilst there were no acts of violence all of the allegations involved abuse, abusive and/or intimidating behaviour. Although not particularised in the schedule, allegations 1 to 3 were supplemented by further evidence at the hearing on 16th August. It cannot be right the contractors who were carrying out instructions on behalf of the social landlords are treated in a way that was set out in the schedule, particularly the person who is making the call, as we had here, who was being abused. What does stand out, however, is what happened on 22nd April which was supplemented in some detail by Ms. Littley when she gave evidence on 16th August. She told me, and I accepted, that she was repeatedly intimidated by Mr. Marks to such an extent that she feared for her safety and arranged to be collected from court as she was alone and was not sure how he would react. She described him as being unpredictable.
- Taking the matters which have looked at and looking at the box under the heading “Breach Of Antisocial Behaviour Orders”, I am satisfied that the breaches fall into the lesser degree section. The starting point is a six‑week custodial sentence but the range is from community work up to 26 weeks.
- As I indicated at the beginning, Mr. Marks was not represented today. He gave a very detailed plea of mitigation. He talked for some 20 minutes to half an hour. In summary what he said to me was that he had already suffered enough. He had been in prison for seven weeks. It was an experience which he did not wish go through again. He had learned his lesson, and he was very sorry for what he did. He also said that he has a medical condition which I accept, cerebral palsy, which is a deteriorating one. In prison they cannot give him the type of medication which he needs. He showed me the morphine patches which he is wearing in court today. He also says that he is compliant with the terms of his licence, and he did not intend to contact the claimant again, as he now has a support worker, so if there are any issues in relation to his housing his support worker will do that on his behalf. He made it quite clear that he did not wish to have any contact with the claimant at all. I imagine that extends to any third parties instructed on their behalf. He told me he has a dog and if I impose a custodial sentence, there would be no one there to take care of it. He said that either a suspended sentence or a fine would be the appropriate order. He told me that when he was sentenced earlier on this year that that caused difficulties for him with regards to his benefits and his motability car, and he that he had to pay a large sum of money, a couple of hundred pounds, to have it released. He says it was made clear to him by motability that if he were to go to prison again, he would lose his car. He says due to the deteriorating extent of the disability that his car was his legs and that would affect him unduly. He says he is also due to see a new neurologist in January of this year, and he did not want to miss that. If he is sent to prison he says he requires morphine that is something they would not be able to give to him. He also says that there are separate proceedings to this particular matter involving Barclay and Mooney and that is something which is very important to him and that is coming on for a hearing next month. Although he could prepare that case from prison, if I pass a custodial sentence, his preparation would be hampered because he would not access to his papers. He also told me that he has a holiday paid for to go to Cancun between the 9th and 21st November and he says he would lose that if he was in prison. Also he is starting a law degree which the government are paying £12,500 he also did not want to lose contact with his mother. I believe he said that contact had just recently been re‑established. As I indicated, Mr. Marks apologised to the court today, and he also apologised to Ms. Littley. He explained that what he said in relation to allegations number 4 that she was on borrowed time was that he meant, not that she was on borrowed time, but that he intended give up his tenancy so, therefore, he would not have to have any contact at all with Affinity Sutton. Despite that, his behaviour was challenging, it was intimidating and I accept that Ms. Lidley was put in some fear.
- Taking all those matters into account however, and taking into account the mitigation he has given me today I am not going to impose a custodial sentence. In my judgment, the appropriate sentence is a suspended sentence of eight weeks suspended for 12 months. I take into account the points made in the Court of Appeal in Gill v Birmingham City Council in relation to sentencing for the totality of the breach. I am satisfied that what I have heard today that Mr. Marks will ensure that he complies with the order of 19th June 2015. As I have already indicated, I do take into account his apology, and I do believe he has learned his lesson. That is my judgment in relation to the sentencing today.