Stafford Borough Council v Haynes & Ors

LADY JUSTICE HALE: This is a claimant local authority's appeal against part of the order made by His Honour Judge Mitchell in the Stafford County Court on 9 August 2002:

The background is as follows. Mrs Sandra Anderson and Mr Gary Haynes each have a local authority tenancy of a house on an estate in Stafford, but they have a close relationship and they and their families move backwards and forwards between the two houses. Mr Benjamin Haynes is Gary Haynes' son.

Section 152(1)of the Housing Act 1996 provides as follows:

This is, as Mr Verduyn who appears for the appellants today has pointed out, an important part of the range of remedies available to a local authority for the purpose of maintaining good order on council housing estates. In particular, they have this new possibility, which were introduced in 1996; and also the possibility of bringing possession proceedings on the grounds of similar types of behaviour in breach of the tenants' covenants, which are also extended in 1996. Clearly, such landlords need a range of responses, which will afford protection to other residents at the very least, and do not necessarily lead to homelessness on the part of those who may be involved in such anti-social behaviour. We are told that Stafford Borough Council, although a comparatively small local authority, has in recent years adopted a policy of commitment to trying to achieve good order on its estates by the use of these comparatively new powers. This is a case in which they sought to do just that.

On 1 August 2002, His Honour Judge McEvoy granted them a without notice injunction under section 152 against Sandra Anderson in the following terms. She was forbidden:

On 5 August 2002, His Honour Judge Ilsley granted a without notice injunction against Gary and Benjamin Haynes. These were in essentially similar terms to that against Mrs Anderson. Three officers contracted to the Council, Claire Castle, James Moore and Benjamin Hunt, together with Police Constalbe John Harrison went to serve those orders. Claire Castle served the orders on Benjamin Haynes in the street, explaining what they meant at the time, but he threw them on to the ground making abusive comments. He was persuaded eventually to pick them up. The orders relating to Gary Haynes were served on him at his home, but again, they were met with further abusive comments, both from Benjamin and from his father.

The police officer therefore attempted to arrest Benjamin for breach of the order which had just been served upon him. Benjamin Hunt was attacked by the father, by Benjamin Haynes, who had broken away from the police officer, and by Sandra Anderson. Further police officers arrived and both of the Haynes were arrested. Sandra Anderson was arrested the next day.

Applications to commit all three of them for breach of the injunctions were made by the local authority dated that same day, 5 August. The grounds of the application against Sandra Anderson included in paragraph 4 these allegations:

The allegations against Gary Haynes are set out in paragraph 4 of the application relating to him:

The allegations against Benjamin Haynes set out in paragraph 4 of the the notice to him were that he:

All three appeared before His Honour Judge Ilsely on 6 August and were remanded on conditional bail until the next hearing which was set for 9 August. Those are the circumstances in which the case came before His Honour Judge Mitchell on that date. The two sets of proceedings in relation to Mrs Anderson and Mr Haynes Senior and Junior were consolidated. All three defendants were there and representation by a solicitor had been arranged. They admitted that each had behaved in the way described in the application notices.

The judge, however, was concerned about a number of matters. He refers to these in his judgment. Were the terms of the original order too wide? He had some recollection of the case of Enfield BC v B (a minor) [2000] 1 All ER 255. Could process servers come within the protection of section 152? Again, he thought that Enfield BC v B (a minor) might have some relevance to that. Would it have been a contempt if there had not been such an order, but they had been serving the process on behalf of neighbours bringing actions against these defendants? Had there in fact been a deliberate breach of the court orders, including whether they had had proper notice of its terms, given, in particular, that the two Haynes had simply touched the document but had not read it? There was also the issue that the police might be intending to pursue criminal proceedings about the incident. Having mentioned all of those matters, the judge continued:

The effect of the order actually made was that further consideration of the local authority's application would have to wait until the conclusion of any criminal proceedings, if any were in fact brought, or fresh behaviour took place, or the matter was restored to the court by the local authority. Mr Verduyn, for the local authority, tells us that it was made clear -- and he was acting on that occasion -- that the court would not take kindly to matters being brought back to court unless there had been a change of circumstances. The effect, therefore, was that the local authority's application was not determined and might never be determined, and, further, that the issues raised by the learned judge were not addressed.

There is a particular concern about whether housing officers who are going about the business of attempting to achieve good order on such housing estates are within the protection of section 152. This is a matter about which  this authority -- and no doubt many other local authorities -- are understandably concerned. If the judge thought that there might be a problem about it, then this is a matter which they were entitled, in their view, to have determined one way or the other; then if either party was dissatisfied with that determination, they could bring it to this court for it to be authoritatively decided.

We are not in a position to make that determination because it is has not yet been done in the court below and that part of the complaint. It would not be proper for us to make observations one way or the other in those circumstances, save to the extent in saying that the facts of Enfield BC v B which concerned the judge were very different from the facts of this case. In particular, the case concerned social services officers rather than housing officers engaged in the management of a social housing estate. The location similarly was different from the location of the events in this case.

Those are the circumstances therefore in which this appeal was brought. The local authority argue that the judge was procedurally wrong to do as he did. The respondents had not applied for an adjournment. The judge should have heard argument from the local authority on the question of adjournment before deciding to do it. The local authority, accordingly, did not have a fair trial of their application.

As to that, I would observe that, of course, there are circumstances in which a judge is entitled to adjourn consideration of a case, if that is the fair or just thing to do. But the circumstances may be rare in which a judge is entitled to adjourn the consideration of a perfectly proper application which has been put before it against the wishes of the applicant to a date which may never arise. The courts are there ultimately to determine the cases that are put before them, and not to refuse to do so.

It is also argued that it was wrong in principle in a case of this nature to adjourn indefinitely or to a time that might never happen. This goes against the principle which is frequently stated in these courts that contempt proceedings should be dealt with swiftly and decisively, see for example Szczepanski v Szczepanski [1985]FLR 468, CA.

It is a further relevant consideration that the longer any question of punishment is put off, the more sterile the situation becomes and, in fact, the more difficult it becomes to impose what would, in other circumstances, be a perfectly proper penalty to reflect the gravity of what has taken place.

It is also argued that it was wrong in principle to wait the outcome of criminal proceedings. At that point there was no certainty that any criminal proceedings would be brought. We are told that Benjamin Haynes was prosecuted, and that on 10 September 2002 in the magistrates court he was sentenced to two months' for assault on the process server. But this was swept up with seven other custodial sentences imposed upon that day and 15 offences taken into consideration. The relevance of mentioning that from the point of view of the local authority is that any deterrent effect which that sentence might have had in relation to this behaviour will have been much diluted by the fact that there were many other things going on at the same time. There was no prosecution against Gary Haynes or Sandra Anderson.

The point is made that criminal proceedings and contempt proceedings are two completely separate things. They serve to some extent, although not entirely, separate purposes. In this connection, the matter has recently been considered by this court in London Borough of Barnet v Hurst [2002] EWCA Civ 1009 which was decided on 17 July 2002. Brook LJ set out at paragraph 33 the principles which had been established at common law before the coming into force of the Human Rights Act 1998.

He went on to point out that a plea of autrefois convict did not arise from previous contempt proceedings, and that in contempt proceedings the court was punishing for disobeying a court order, and in the criminal proceedings it was punishing for the actual offence committed. In paragraph 36 he quoted from Lord Bingham CJ in M v M (Committal: Contempt) [1997] 1 FLR 762 at page 765 E to F:

He went on to consider whether the implementation of the of the Human Rights Act had any made any difference. He concluded at paragraph 42 after a review of the case law in the European Court of Human Rights that it did not. A Divisional Court decision to the same effect in DPP v Tweddell [2002] 1 FCR 438, to which Latham LJ was a party, was correct. Brooke LJ pointed out that there were cases in which it might be necessary to consider whether there was a real risk of prejudice to the defence in criminal proceedings if the defendant had earlier been required to defend himself in contempt proceedings. It did not arise in that case and it does not arise in this case, for the reason that the conduct alleged in this case was admitted by the defendants.

For all of those reasons, it is argued that the judge was wrong to make the order that he did, and that he should have proceeded to hear and determine the local authority's applications, possibly after a short adjournment to enable the defendants to arrange more carefully considered legal representation.

I am conscious that this was a discretionary decision with which this court can only interfere if is plainly wrong, but I am firmly of the view that it plainly was wrong in this case for all the reasons that have been urged upon us on behalf of the local authority and, to some extent, amplified by me in the course of this judgment. It is a very old principle that justice delayed is justice denied. If the matters admitted by the respondents do amount to a contempt of court, as to which it would not be proper for us to express a view as the court below has not yet done so, then the local authority on behalf of all of those living on and engaging in lawful business on this estate, are entitled to have it dealt with.

I would therefore allow this appeal and remit the case to be heard in the county court as soon as that can practically be arranged. I would invite views as to whether it should be before a different judge.

LORD JUSTICE LATHAM: I agree.