Solon South West Housing Association Ltd. v James & Anor

LORD JUSTICE PETER GIBSON: I will ask Lord Justice Mance to give the first judgment.

LORD JUSTICE MANCE: This is an appeal against a judgment of District Judge Bird given in the Bristol County Court on 4th June 2004, leading to an order dated 12th July 2004, whereby he made and refused to suspend a possession order in favour of the respondent housing association, Solon South West Housing Association Ltd, in respect of the house of which the appellant defendants, Eran and Lisa James, were the tenants. The housing association had sought possession of the house by a notice dated 15th September 2003, on the grounds that there had been non-payment of rent and breach of other obligations of the tenancy and under the heading "ground 14", a reference to Schedule 2 of the Housing Act 1985 (as amended) on the ground that:

The particulars of claim exhibits a schedule of nuisance, in which a number of allegedly significant dates going back to 5th August 2002 and extending until 31st January 2004 appear.

The non-payment of rent and at least one incident of nuisance or annoyance involving, it appears, interference by the appellants' children with a vehicle's tyres were admitted, so that there was no issue that some form of possession order was appropriate. The issue tried was whether any possession order made should be suspended. That included substantial issues as to the extent, if any, of any further breaches or conduct involving nuisance or annoyance.

Counsel for the appellants submitted, and the judge accepted, that the limited admitted breaches to have I which referred would not by themselves justify an outright order. Whether an outright order should be made therefore turned on whether there were any, and if so what, further breaches or conduct of the nature described. The judge concluded that there had been. He heard, during a trial which extended over at least three days (that is 11th May, and 28th and 29th May), both oral or (as he described it) live evidence and hearsay evidence. He summarised in his judgment the live evidence as follows:

He also summarised the hearsay evidence as follows:

A comparison of the summary which he gave in those passages with the housing authority's original allegations as scheduled to the particulars of claim and with the voluminous documentation put before the court shows that the judge was selective in the material he used. The selection must have been deliberate, since he cannot have forgotten the submissions being made on a number of other allegations. So it seems to me that it does not assist this appeal for Mr Cottle to produce, as he has this morning, a lengthy list of every possible allegation and to complain about the nature of the documentation produced in relation to allegations to which the judge, in my view, cannot have been referring when he said that he accepted the hearsay evidence adduced. When the judge said that, he was, as I see it, referring to the hearsay evidence set out in the paragraphs which I have incorporated in this judgment, and in that sense defining and limiting the material to which he was referring. I will revert subsequently to whether that means that he was necessarily accepting to every point mentioned in those paragraphs, particularly, for example, in the log of incidents produced by PC Taylor and in paragraph 12 the passage which he put in inverted commas.

It seems to me that the judge therefore directed himself with some care in relation to the hearsay evidence. He said specifically that it was "important to compare the hearsay evidence with the 'live' evidence and to adopt a more restrictive view of the hearsay evidence where it seems not to be consistent with the live evidence." He accepted the housing association's live evidence rather than the appellants' live evidence, and he found the hearsay evidence "entirely consistent with [his] findings of fact in the live evidence." He found that it fitted "the pattern established by the live evidence": see paragraph 22 of his judgment. He took into account the drastic nature of any unconditional possession order, but he concluded (in a passage to which I will revert) in paragraph 24 that such was nonetheless appropriate.

An appeal is now brought with leave of the single judge on 11 grounds:

There is, as the respondents have observed in their skeleton argument, considerable overlap between these grounds. One category of complaint relates to the hearsay evidence, in relation to which it is said that the judge adopted the wrong approach, both generally and in particular respects (see ground 3 and grounds 8-10). That is put at the forefront of Mr Cottle's submissions today.

Another ground relates to the treatment by the judge of certain evidence, in particular as regards a Miss Clarke. It is said that the judge was wrong in the way that he accepted that she saw Mr James abusing a Somalian family (that is ground 6) and wrong in permitting her to introduce vague new allegations (ground 11). Those points have not featured large before us today.

It is further said that the judge was wrong in his approach to or acceptance of police evidence of alleged incidents after September 2004 (that is grounds 1 and 2) and wrong not to accept and take into account that any significant complaints and incidents had ceased after the issue of the notice seeking possession in September 2003 (that is grounds 4 and 5). Those points have again been at the forefront of Mr Cottle's submissions today and he has tied them into more general complaints, including reference to the European Convention on Human Rights.

Ground 7 is really a wrap-up ground, to the effect that the judge was wrong to conclude that the family terrorised the neighbourhood, without evidence to justify that conclusion and making the errors complained of in the other grounds. Again, it is right to say that Mr Cottle has sought to view that in conjunction with the points made on hearsay evidence and to suggest, in particular, that points arise on the European Convention on Human Rights.

I start with the points on hearsay evidence. The primary evidence relied upon by the respondents was live oral evidence, but hearsay evidence was also relied on contained in statements served with the claim form. One of Mr Cottle's complaints today has been that the judge should have identified whether the live evidence by itself was sufficient to establish the appellants' contentions. But I do not see that he was under any obligation to do that. It was entirely open to him to decide what aspect of the hearsay evidence he felt could be relied upon safely as an annex to, or support for, the live evidence, and then to view the overall evidential position when arriving at his judgment whether or not the possession order should be suspended.

As regards the hearsay evidence, there was no application for this to be formally excluded and there appears at no stage to have been, either prior to or at the trial, any application for information as to the identity of makers of statements who were not identified in the statements or identifiable from other circumstances. The evidence, both live and hearsay, was in major respects challenged by the appellants in their statements and oral evidence, and it was certainly submitted that the judge should not find it reliable or at any rate rely on it to the point of making an outright possession order. It is right that in cross-examination some questions were put with regard to the origin of some of the hearsay complaints, particularly those in 208f and g, although ultimately there does not appear to have been much (if any) issue taken with the proposition that there were continuing internal problems within the appellants' household. But it is also right to say that counsel for the appellants cross-examined in a way which in fact led to further hearsay evidence being adduced.

The first part of ground 8 is a complaint that the judge erred in admitting hearsay evidence when no adequate reason was given for non-attendance of the relevant witness at trial. In the second part of ground 8 and in ground 9 it is said that the judge erred in admitting the hearsay evidence, since it could not be the subject of cross-examination. In each case the judge is said to have acted contrary to Article 6 of the European Convention on Human Rights.

In ground 10 it is further said that he erred in failing to apply the criteria of section 4 of the Civil Evidence Act 1995 when deciding what weight to place on the hearsay evidence. It is right to say (and I think Mr Cottle accepts) that, looking at, for example, his final submissions below, these points have achieved before us an emphasis which they were never given below. As I have said, the evidence was challenged, but the broad submissions as to the approach which a court should take, under the Human Rights Act in particular, to such hearsay evidence were not canvassed below.

The domestic context is, as ground 10 recognises, section 4 of the Civil Evidence Act 1995. On the face of section 4, the availability of the maker of an original statement to be called is a matter going to weight not admissibility, but there is certainly power under the Civil Procedure Rules to exclude hearsay evidence. We were referred in that connection to the case of Grobbelaar v News Group Newspapers Ltd, 12th August 1999 in this court, although we were only shown this in The Times Law Reports for that date.

To my mind, there is very little, if any, relevant difference between asking a judge to exclude evidence (which in this case does not appear to have happened) and asking him not to rely on it, since under section 4 a judge could determine that evidence was not worthy of any particular weight even after it had been admitted. So in one sense it does not matter that there was no application to exclude the evidence. The question is whether the judge put weight on particular evidence and whether he was justified in doing so.

The skeleton argument for the appellants observes that in paragraph 5 the judge referred to the respondents' claim that:

In so far as the skeleton argument suggests that that meant that the judge was proposing to look at hearsay evidence where witnesses were both identifiable and willing to be called, I do not think that that follows. It seems to me that he made clear in his judgment which hearsay evidence he was relying on. Some of it includes hearsay evidence, as I say not objected to as such, from identified persons, such as the police officers, PC Jones, PC Dello Gorin, and PC Lloyd. Other parts of it included hearsay evidence from witnesses who the judge was, in almost every case, careful to identify as witnesses who did not want their identities revealed or who wished to remain anonymous, either by inference or expressly out of fear. There was overwhelming evidence of complainants being unwilling to be identified or called because of such fear. There does appear in relation to the one incident of 1st December 2003 (to which I will return) that there was some cross-examination as to the basis of that view, recounted, as it was, by officers or others to the court. But apart from that, it does not appear to have been put to any live witnesses, police officers or others, that the hearsay evidence which they adduced as coming from witnesses who were in fear was in that respect inaccurate and that the witnesses were not in fact or might not in fact have been in fear.

When one reads the judge's account of the hearsay evidence which I have incorporated in this judgment, it seems to me that, far from endorsing generally the hearsay evidence in the bundle without discriminating between hearsay evidence coming from witnesses who were expressly unwilling by reason of fear to give evidence and other witnesses, the judge was careful in relation to the anonymous witnesses to confine himself to evidence where there was evidence of fear of identification or reprisals precluding the disclosure of their names or their calling. As I have said, in the other cases where the names were identified, the obvious position is that it would have been open to Mr Cottle to require them to attend for cross-examination under CPR 33.4, something which he never did at trial. There may perhaps be some individual exceptions to what I have said with regard to the anonymous witnesses, but it is not such as could possibly determine the outcome of this appeal.

Mr Cottle emphasised before us the importance of cross-examination and the prejudice, as he submitted, of inability to cross-examine in cases of admission of hearsay evidence. That inability is a natural consequence of the admission of hearsay evidence, where the maker of a statement is not identifiable or available to be called. But it is notable, as I have said, that even where the makers of statements were identified, no application was made for them to be required to attend for cross-examination. Further, even in relation to witnesses who were not identified, there are instances of such witnesses who were identifiable. Mr Cottle has accepted that some of the anonymous witnesses were identifiable, for example, the witnesses referred to in appeal bundle, page 111 and 119 and at transcript 181 and 226. The witness there referred to was resident in No 21 Brighton Street with her children. Number 21 is the house opposite number 30, where the Jameses live. Another instance is appeal bundle at page 148, where there is a reference to the name of one such witness, Hoda Ismal. But as I have said, there was no application under section 3 of the 1995 Act and CPR 33.4 for their attendance and cross-examination.

Mr Cottle also placed much weight today on the need to preserve equality of arms under the European Convention on Human Rights. He submits that goes in this context even further than the common law position. He referred us to the case of Dombo Beheer BV v Netherlands (1993) 18 EHRR 213, particularly at paragraph 33, where the European court said:

Mr Cottle also submits that we should apply in this field what was said in the case of Albert and Le Compte v Belgium (1983) 5 EHRR 533, paragraph 21, about the application in proceedings other than criminal proceedings (in that case disciplinary proceedings against doctors) of the right to have witnesses examined. However, it is clear that that is not -- certainly not in civil proceedings, and not even I think in criminal proceedings -- an absolute right. There was no question in Albert and La Compte of intimidation or fear. The judge in the present case was of course bound to take into account the absence of cross-examination when evaluating, under section 4 of the 1995 Act, what, if any, weight was to be attached to the hearsay evidence called by the respondents. It is clear that he did so. He said this in paragraphs 6 and 7 of his judgment:

As these passages show, the judge had well in mind the relevance of the European Convention on Human Rights. That Convention guaranteed to the appellants a fair and public trial. But in both domestic and in Convention terms the present proceedings were civil proceedings, even though they involved consideration whether the appellants had committed anti-social behaviour as well as applications for anti-social behaviour orders in respect of which the court has said that it would be appropriate to adopt the criminal standard of proof. The authority for those propositions is R (McCann) v Manchester Crown Court [2002] UKHL 39, [2002] 3 WLR 1313. I refer in particular to the speech of Lord Steyn at paragraphs 27 and 34 and of Lord Hope at paragraphs 67 and 77, with both of whose reasoning Lord Hobhouse and Lord Scott agreed; see also at paragraphs 98 and 111 Lord Hutton, with whose reasons Lord Scott also agreed.

The position regarding hearsay in particular was addressed by Lord Steyn at paragraphs 35 to 36 as follows:

Lord Hope addressed it at paragraph 77:

The judge's admission of hearsay evidence in the present case does not therefore run into any general problem under the European Convention on Human Rights. The issue becomes, rather, the case-specific issue: whether the way in which he addressed the hearsay evidence and the weight which he attached to it was in all the circumstances appropriate and fair, or whether he acted in some way unfairly in its treatment, or attached disproportionate weight to it in such a way as to make the proceedings unfair. It seems to me that in this respect the Convention adds little to what would any way be involved in the proper application of the discretion provided under section 4 of the 1995 Act. Be that as it may, I have, for my part, no doubt that the judge's exercise of his discretion was appropriate and fair, and that he approached the matter correctly and in a way which cannot be regarded as impacting adversely on the overall fairness of the proceedings.

I have already recounted how the hearsay evidence was adduced and the absence of any formal objection to its introduction, as well as the absence of any request for further identification of the makers of statements or for those makers who were identified to attend for cross-examination. The hearsay evidence was in large measure contemporaneous with the events described, and where dates were not given the explanation given was that there were so many episodes that the complainants could not categorise them (see, for example, what was said in the course of PC Taylor's evidence on 11th May, at transcript page 49G). The hearsay evidence of racially-aggravated comments against local Somalian residents was corroborated by Miss Clarke in her oral evidence (see, for example, transcript pages 170-172, 180-181 and 183-184).

That there was racially-aggravated tormenting of Somali residents of the locality by some person or persons was actually confirmed in their evidence by the appellants themselves. Indeed, they said that they knew by whom and that it was not by them, but they declined to identify the actual perpetrators (see transcript pages 253-254). All this, although Mrs James herself attested to at least one period when there was altercation and a problem between her family and a Somali neighbour (see transcript pages 225-226).

Mr James also agreed that people had been shot at by a ball bearing in pistol in Brighton Street, but he denied that his family had such a gun or that it had been by his children. He said, rather remarkably, that the person concerned had been convicted and that the police were falsely pinning the blame on his family, but he declined to identify who he said the person convicted was (see transcript pages 260-262). Although in a statement dated 10th July 2003 he denied that any such items as a ball bearing gun were in his house, it transpired in his evidence that the family had a starting pistol which the police had later, in September 2003, removed.

Looking at the matter more generally, the reason for not adducing live evidence from the hearsay witnesses was, as I have said, in the case of those who were not identified, either in every case or in almost every case, fear. That was clearly a reason which the judge was entitled to put into the balance when deciding what weight to place on the evidence. Unless fear is a good potential reason for adducing such hearsay evidence, there could be no proper protection of the interests of the public or indeed the interests of landlords performing a service benefiting the public.

Second, as I have said, the judge conducted what appears to me to have been a careful balancing of the interests in deciding upon the correct approach to adopt to the hearsay evidence.

Third, it seems to me that the judge started with and took as his primary concern the live evidence. His conclusion as to the hearsay evidence was that it was consistent with and fitted the pattern established by the live evidence. That is made specific in paragraphs 21 and 22 of his judgment. I should add in relation to the live evidence that in paragraphs 20 to 22 he reached clear conclusions which have not been criticised with regard to the credibility of the witnesses which favoured in every case those called by the Housing Association as opposed to the appellants:

With regard to the general European position, McCann indicates that there is no objection to the use of hearsay evidence in the way the judge used it. I would add that even in a criminal context there is European authority that hearsay evidence may be admitted, provided any conviction is not solely or to a decisive degree based on it (see Doorson v Netherlands (1996) 22 EHRR 330, at paragraph 76). Here however we are, as McCann shows, concerned with civil proceedings.

Let me move to more specific points. Even if there are criticisms which can validly be made of certain aspects of the hearsay evidence put before the judge, it seems to me that the hearsay evidence which he identified and relied upon in his judgment has not been significantly undermined by anything said by Mr Cottle. One specific point on which reliance is placed on behalf of the appellants is ground 3. That relates to the statement in inverted commas in paragraph 12 of the judgment, where there is reference to a record of a complaint about "violence, verbal abuse, shooting pellets, and 'beating up a Somalian man'", with a documentary cross-reference to what is now page 115 in the appeal bundle. That page is a file note made by the Housing Association of a summary of a conversation with an anonymous person, who Mr Cottle accepts can be identified as the occupant of No 21 Brighton Street. According to that file note she referred to verbal abuse when walking along the street, her daughters being followed, the doorbell being rung and the persons ringing it running off, and people being shot as they walked up and down the street, possibly by a pellet gun. She said that there had been quite public incidents of domestic violence between the household of No 30, and then appears the material sentence:

It is said, from the reference in paragraph 12, that the judge held against the appellants matters which were not part of the pleaded case or any oral evidence. It seems to me, however, that the reference made in paragraph 12 was very much made in passing and that the inverted commas are significant. The judge I think was implicitly avoiding any automatic endorsement of that statement. I think it is impossible in these circumstances to conclude, bearing in mind the brevity of the statement and the absence of any emphasis on it at the trial, that the judge intended to make a specific finding that there was such an incident or that he could in any event have been influenced in any material way by this single reference to a written record of a complaint which he put in inverted commas.

I turn to other specific points on the evidence which form the basis of different grounds, that is in particular grounds 6 and 11 relating to Miss Clarke. Two aspects of her evidence are criticised. First, it is pointed out that the judge described her as "a most impressive witness". In response to this it is observed that she said for the first time in the witness box, and without prior reference in any statement, that she had seen Mr James abusing a Somali family and had stood between them without being able to give any details. It seems to me that that is a non-point and, as I have said, Mr Cottle did not canvass it today orally. During her evidence in chief she was, without objection, shown a copy of Housing Association notes, including a conversation with her on 5th September 2003, and she confirmed in general terms that the allegations made in them were true (transcript page 156). During cross-examination she was asked more specifically whether she knew if someone called Courtney, who was until about six weeks before the trial apparently a friend of the Jameses' children, had been racist towards the Somalis. To that she replied:

Then it was put to her that she was making it up also in relation to Lisa James and she said:

It is true that in chief she had not said any of this explicitly, but it seems to me difficult to suggest that the answers she gave in cross-examination came out in any way which throws doubt on their credibility, and it is not right to say that she had never made such statements before. The Housing Association notes of the conversation of 5th September 2003 contain this passage, although for some reason it was not reproduced in her written statement of 30th January 2004:

Ground 11 goes to the timing of these and other incidents about which Miss Clarke gave evidence that, although she could not date them precisely, they had, as I read her evidence, continued since autumn 2003. During her evidence in chief, counsel for the respondents gave notice that he proposed to ask how the situation had been since her statement of 30th January 2004. The District Judge allowed this question over an objection by Mr Cottle (see transcript pages 158-159). Miss Clarke's answer was that the appellants had been better than before, but that now it was summer again the James children were on the roof again, throwing cups off the roof while Mr and Mrs James were there, and shouting in the streets again, including at 2.30 to 3.00 a.m. in the morning (see transcript pages 159-160).

I should add that Miss Clarke strongly objected to the suggestion of a suspension order, expressing her view in no uncertain terms that it would do no good and be almost equivalent to letting the appellants get away with it. However, that was not of course a view binding the judge. It was her view. She thought that any improvement was simply temporary because of the proceedings.

The question of the timing of further incidents arose in cross-examination, again as to how matters had been recently. She was asked to recount any recent problems and she said this (at pages 175-176):

Over the page she was again asked about her evidence that Kane and Marley, two of the children, were in the street recently and she said that she had heard things. It seems to me therefore that she did give evidence of some materiality regarding continuing recent problems. She also gave more specific evidence about two incidents, not on the face of it recent, which the judge permitted her to do in re-examination. One of them related to a lady called Gloria Ojulavisuli who lived at No 19 and another related to the Somali family which lived at No 21, in relation to whom she said that she had interposed herself between them and the Jameses during an altercation (see transcript pages 180-181 and 183-184).

Again, the appellants' skeleton arguments object to the admission of this evidence, but in each case it seems to me that it was very much a matter for the judge's discretion whether to admit such evidence, and that this court cannot and should not interfere with the exercise of that discretion. The respondents point out, as a supporting factor in that regard, that the appellants themselves were very late in their service of a defence and witness statements, and indeed during the trial on its last day called a social worker without any prior statement or warning.

I turn next to grounds 1 and 2, which relate to a list of alleged incidents produced by Police Constable Taylor by a statement dated 10th March 2004, which were identified at trial as pages 208F-G. Police Constable Taylor's statement shows that these incidents were simply obtained by him from police records, in particular, he says, from six control room logs, seven crime reports and an intelligence report:

The appellants submit that the judge's approach to this material was defective. In summary, they submit that the hearsay evidence could not justify a finding that the matters recorded happened; that in relation to the incident of 1st December, which is not an internal incident, a discrepancy in the material available existed which the judge failed to address; and that the judge was not entitled, if he did, to treat internal incidents as involving any sort of nuisance to the neighbourhood or neighbours. However, I note that all that was said in the final written submissions for the appellants prepared by Mr Cottle below was this, at page 394 in the appeal bundle:

It seems to me there may be, in the light of that very brief reference, substantially less force in the submission that the judge ought to have dealt specifically with these suggested incidents than might in other circumstances have been the case. All he did was, in passing in paragraph 9, refer to the production by PC Taylor of a log of incidents allegedly involving the defendants. By itself his conclusion at paragraph 22 might leave room for doubt as to whether or not he was accepting that the incidents occurred, and if so what significance he attached to them. However, the reality is, it seems to me, that the internal incidents were not really in dispute. The page I have already referred to in the written closing submissions (page 394) seems to suggest that, and when one looks at the transcript at page 240 it appears that Mr Cottle intervened to state that it was accepted that internal disputes had occurred in this family, thereby effectively cutting off further enquiry.

Mr James, when he was shown this list, also accepted explicitly at least the incident of 14th January 2004, although he said he did not remember any knife. As to the incident of 31st January 2004, he also said that if there was any such fight it would have involved Kane and Zack, not Kane and Marley. That was hardly a resounding denial of internal incidents.

So it seems to me that that is the overwhelmingly probable explanation of the way in which the judge dealt with this list as regards the internal incidents. I accept that a pattern of internal disputes would not by itself justify a conclusion of nuisance to neighbours, but the judge indicated that the significance which he attached to the hearsay evidence was that it fitted the pattern of the live evidence, and he had already stated that that was to show not only that the defendants and their children had been violent and abusive to neighbours, had racially abused a Somali family and had caused damage to property in the street, but also to show:

The internal incidents were capable of having potential relevance on the latter point, and there is nothing to indicate that the judge was attaching any greater significance to them.

However, that does leave the other category of incident contained in the list. That is in particular the incident of 1st December for which there is a briefly reported incident of police being called to an assault where the offender believed that one of the James family had assaulted the victim by hitting them on the side of a face with a glass beer bottle and where, according to the summary, it is said the victim would not make a complaint due to fear of reprisals.

Now that incident was the subject of cross-examination (transcript page 37), during which PC Taylor conceded that he could not possibly suggest that a prosecution could be begun on the basis of that evidence. The perpetrator would be unknown. However, it is also right to say that it was the subject of further cross-examination with PC Taylor (see transcript page 104) where a discrepancy between the list and the underlying police record was suggested to him. There was a reference in the appellants' closing submissions to the incident of 1st December, again relying on that discrepancy. So I think it would have been better if the judge had expressly addressed and indicated his approach to the incident of 1st December 2003, as it appeared in the list to which he referred. But for my part I cannot think it right to treat him as having accepted that the incident occurred, or at any rate, if he accepted that it had occurred, as having placed on it any weight which can possibly have been decisive in his decision. There were, it seems to me, far more telling incidents of which there was direct evidence and the hearsay evidence was only invoked by the judge as generally supportive of the pattern which the live evidence involved.

With regard to inconsistency, it is said that Police Constable Taylor's evidence that the victim was fearful of reprisals (transcript pages 37-38) is inconsistent with the contemporary note made by a police officer to the effect that he had visited the victim in Bristol Royal Infirmary and that the victim had said that he did not want any police action, stating that they were only youths. For my part, I must say that that sounds an odd statement for someone who had had to be admitted to a hospital following a glassing, and there may be more to it than meets the eye. This suggested inconsistency was the point put to Police Constable Taylor in cross-examination at transcript page 145, and he gave the answer (which certainly cannot be rejected as necessarily incorrect in the light of the oddity of the recorded reference by a victim who was hospitalised to youths) that his information came from the sergeant in charge of the investigation.

As I say, it would have been better if the judge had addressed specifically the incident of 1st December 2003, since he referred to the list of hearsay evidence. But it seems to me in the overall context it is a small point and I cannot accept that there is any possibility that reliance on this incident, even if I thought that he had reached a conclusion that it occurred, could have been decisive in his overall decision.

That brings me to the other point which was at the forefront of counsel's submissions today. That falls under the heading of grounds 4 and 5, failure to accept and take into account that any significant complaints and incidents had ceased after the issue of the notice seeking possession in September 2003. There is no doubt that this aspect was an important focus of the appellant's case at trial and it was common ground that there had been some reduction in the misbehaviour. I would again agree with the appellants that it would have been better, at least with hindsight, if the judge had addressed this aspect more specifically and fully. But I think, as I will indicate, that there is an indication as to why he did not in his judgment.

The appellants refer to a suggested inconsistency between evidence given by PC Roach and evidence given by the Somali lady living at No 21 Brighton Street. Police Constable Roach recorded her as referring in November 2003 to persistent racial taunts. However, those were taunts which she said that she has received. It seems to me, contrary to Mr Cottle's submission, that that is quite consistent with her referring to a position up to but not after the end of September. That point arises because it is clear from the evidence of Marion Burrell of SARI (Support against Racial Incidents) that the same woman was telling her that there had been no complaints after about the end of September. It seems to me that the suggested inconsistency between what Police Constable Roach was recording and what Marion Burrell was recording is non-existent. However, it does also follow that, as regards that particular Somali residence, matters improved after the end of September and that may be associated with the obtaining of injunctions against the appellants in early October.

The appellants also suggest that the judge may have double counted complaints occurring in the period up until September 2003, because the judge referred in one paragraph to PC Roach and in another paragraph to Marion Burrell and did not make clear that they were talking about the same matter. There seems to me no justification for that speculation. The judge was simply identifying different concurring sources of allegations, not necessarily different allegations. The point is again anyway a tiny one in the overall context.

There is a further point on the suggested inconsistency between the statements of PC Roach regarding the Somali living at No 21 and the statements of Marion Burrell, and that is that Mr Cottle's skeleton argument is wrong to refer to PC Roach as referring to this woman as speaking of daily racial taunts. The phrase she actually used was "persistent racial taunts" (see page 181) and the judge, when he recited the hearsay evidence on which he relied did not actually recite that piece of evidence. That again seems to me, however, a very small point.

The important point is that there was an improvement and that was common ground. Marion Burrell confirmed that, although she no longer had direct responsibility since September 2003, SARI had not itself received any reported incidents since then, save she said "swearing and shouting" (see pages 77 and 84 in the transcript). Swearing and shouting is itself however of some potential significance. The judge, as I have said, heard other evidence, not just the hearsay evidence from Police Constable Taylor, but also the direct evidence from Miss Clarke, the next-door neighbour to No 30, whom the judge found an impressive witness. I have recounted her evidence. So it would not be right on any view to suggest that the judge should have approached this case on the ground that all problems had died away.

Nevertheless, the general question arises whether his failure to deal with this aspect more specifically makes his judgment vulnerable to a criticism that he overlooked it, or failed to take it sufficiently into account, when deciding what if any relief to grant by way of suspension. Despite the importance to be attached to explicit judicial reasoning, I do not think that either is to be presumed (see, for example, Minchburn Ltd v Fernandez (1986) 19 HLR 29, at paragraphs 32-33 and 34). The general legal position appears in several authorities, particularly Canterbury City Council v Lowe (2001) 33 HLR 53, page 15, and pages 18-19 at paragraphs 25, 36 and 43; Lambeth London Borough Council v Howard (2003) 33 HLR 636 at paragraph 58; and New Charter Housing (North) Ltd v Ashcroft (2004) HLR 587 at paragraph 36.

In Canterbury City Council v Lowe, Kay LJ, giving the judgment of the court, said:

At paragraph 36 he identified the relevance in cases such as the present of the difficulty of proving a breach of a suspended order. He referred in particular to the difficulty of getting witnesses to come forward, which he said was clear in the case before him, and the further difficulty of proving exactly who was responsible for any further conduct which was relevant bearing in mind the sort of person the respondent was (again in the case before him) found to be. He said more generally:

Waller LJ added to the factors adumbrated by Kay LJ this (at paragraph 44):

In Lambeth London Borough Council v Howard, the court (in a judgment given by Sedley LJ) again had to consider whether and in what circumstances an order for possession should be suspended, and said that the court should take into account a tenant's efforts to improve his behaviour and the effect on neighbours in the event that the order was suspended. It said, as the headnote recounts:

At paragraph 23 Sedley LJ identified the potential significance of a complete failure on the part of tenants, who had clearly misbehaved themselves, to acknowledge that they had done anything wrong. He said that, if the appellant in the County Court had a point in support of the suspension of the possession order, it was that the judge had failed to mention the trouble-free period of a year when he was assembling his conclusions. He said that counsel had wisely concentrated on this point. But Sedley LJ went on to say this:

Those considerations find a considerable parallel in the circumstances of the present case. Here too, in so far as there is any criticism of the judge for failing specifically to address the question of improvement in behaviour, the likely explanation is that that point was almost certainly overlaid by the severity of the conduct which was found to be proved and by the continuing total denial during the course of the trial that anything had been done wrong.

The court in Lambeth London Borough Council v Howard also dealt with the relevance of the European Convention on Human Rights at paragraphs 29-32. Although Sedley LJ indicated that it could do no harm and might often do a great deal of good to approach the exercise of whether or not to suspend a possession order by considering it terms in proportionality, it is quite clear that he did not consider that that in fact fundamentally differed from the position at common law or apart from the Convention.

At paragraph 39 Sedley LJ concluded that it was right not to suspend an order. He used the graphic phrase, which has been referred to before us, "the shadow of the past is too heavy upon the present" in support of that conclusion.

Finally, in New Charter Housing this court (at paragraphs 30-32) identified certain further considerations in relation to the making of a suspended possession order. This too was a case where the court replaced a suspended order with an outright order for possession within six weeks, on the ground that the judge on his own findings had no reason to suppose that the tenant would take any opportunity offered by suspension. The facts of that case are different, as the facts of any individual case are likely to be, from those of the present. But the court mentioned the relevance of the interests of neighbours and the difficulties of proving breach of conditions imposed in an order, a point which had been referred to in the Canterbury case.

That being the general legal framework, it seems to me that the key to the judge's conclusion is to be found in large measure in factors I have already mentioned. In paragraphs 23-24 he was expressing, tersely and forcefully, his view that there was no point in a suspended order. In expressing that view he cannot have forgotten the points which were made in relation to recent conduct, but they were overlaid, as I have said, by the severity of the proved conduct, the fact that there was evidence of some continuing conduct, particularly from Miss Clarke, and the way in which the trial proceeded, with a complete absence of recognition of fault or remorse on the part of these appellants. The judge said this:

This was also consistent with what he had said earlier in paragraph 4, to the effect that if the appellants' case was substantiated on the facts then an outright possession order was inevitable. As I say, I do not consider that the judge can realistically have forgotten or failed to take into account all that had been said about subsequent improvement. On the contrary, I think he was determining implicitly that any such improvement gave no reliable security as to the future.

The main focus of the evidence before the judge was, of course, on evidence leading up to the proceedings. The ultimate picture involved some evidence about subsequent conduct which was not so reassuring that it could be decisive. The appellants remained almost entirely unadmitting and unrepentant. There was only at the end of the trial what the respondents in their skeleton argument have justifiably described as the most pallid regret relating to unspecified nuisance, "if" the appellants' children had caused it to other people. In those circumstances, I do not consider that this court can or should interfere with the judge's judgment on the grounds suggested under grounds 4 and 5, or that it was either unnecessary or disproportionate to make an immediate order for possession.

Ground 6, the final catch-all, can add nothing to the position in the light of the conclusions which I have reached on its components.

For those reasons, I, for my part, would dismiss this appeal.

LORD JUSTICE CARNWATH: I agree. I would only that I would have been content to reach the conclusion by a more summary route. Although we were referred to a bundle containing 22 authorities, including eight European ECHR authorities, this case raises no new issue of principle. The relevant approach has been explained in a series of Court of Appeal cases to which my Lord has referred. In this case, on any view of the evidence, and even taking account of the points made by Mr Cottle, there was ample evidence that this family had, as the judge concluded, been terrorising the neighbourhood for two years or so. In those circumstances, in line with the authorities, an order for possession was inevitable. The only question was whether it would be suspended.

In some cases (of which West Kent Housing Association Ltd v Davies (1998) 31 HLR 415 is an example), the court has been able to find that the defendant has learnt his or her lesson and there is a real prospect of compliance. This case does not begin to approach that. Indeed, as the judge recorded, far from making any serious attempt at an apology, Mrs James is recorded in paragraph 17 as saying "'why should I change myself? I have done nothing wrong'" and Mr James as saying "'I have done nothing to apologise for.'"

Not only do I think the judge was right not to suspend this order, I would have been astonished if he had taken any other course.

LORD JUSTICE PETER GIBSON: I also agree.