Gill v Birmingham City Council

This is an appeal as of right against a committal order dated 12 February 2016 whereby Her Honour Judge Wall sentenced the appellant, Thomas Gill, to fourteen months and twenty three days imprisonment for breach of an anti-social behaviour injunction (“ASBI”) dated 29 July 2014. Her judgment is to be found at [2016] EW Misc B3 (CC).

By an order made on 29 April 2016, Christopher Clarke LJ granted the appellant an extension of time for filing the appellant’s notice, determined that the Appellant qualified for legal aid and granted him legal aid in these proceedings. The grant of legal aid was to cover work by solicitors and a junior advocate in connection with this appeal. The position today in relation to legal aid is that, when questioned by the Court, the appellant made it clear that, since he had personally conducted the case below, he preferred to present his arguments on this appeal himself. Accordingly the Court proceeded notwithstanding the absence of legal representation on the appellant’s behalf.

The appellant’s former partner, Sarah Jordan, is a tenant of Birmingham City Council (“the respondent”). Miss Jordan and the appellant have a child together from their previous relationship. The relationship ended in approximately 2008. In or about March 2012, the respondent applied for an ASBI against Mr Gill. It set out in its particulars of claim the allegations upon which the application for an injunction was based. These included allegations of a history of domestic violence perpetrated by the appellant upon Miss Jordan; the civil injunctions obtained by Miss Jordan against the appellant, the most recent of which expired on 31 March 2011; and specific allegations of convictions and particulars of nuisance and annoyance caused by the appellant in the period 2005 until May 2012.

On 22 June 2012 a final ASBI was granted against the Appellant. There were two committal applications in 2013 which were subsequently discontinued by the respondent. On 29 June 2014, His Honour Judge Robert Owen extended the final ASBI to 29 July 2019 and added an additional term. The amended injunction was personally served on the appellant on 7 August 2014 and was in the following terms:

“Thomas Gill, whether by himself or by instructing or encouraging any other person shall not

(1)

assault, harass, intimidate, pester, threaten or use violence against Miss Sarah Jordan of 6 Pudsey Drive, Sutton Coldfield, Birmingham.

(2)

communicate by any means whatsoever verbally or otherwise with Miss Sarah Jordan, including but not limited to by telephone, text message, email, facebook or any other social networking site, except through a solicitor or social worker for the purpose of arranging contact with their son.

(3)

… enter the area outlined in red on the map attached, (which shows Miss Jordan’s property at the centre of a wider exclusion zone).

(4)

enter Bath Row, Edgbaston.”

Prior to the hearing on 12 February 2016, there had been three previous committal orders made against the appellant:

The application for committal before HHJ Wall involved seven alleged breaches of the ASBI. These can be summarised as follows:

The breaches on 7, 19 and 21 January 2016 all took place whilst Mr Gill was on bail for the breaches on 4 and 9 December 2015.

At trial, HHJ Wall heard oral evidence from a number of witnesses including the appellant and Miss Jordan.

HHJ Wall gave judgment and found all of the breaches proved. In the course of her judgment HHJ Wall considered the standard of proof and evaluated the respective credibility of Miss Jordan and the Appellant. Thus at paragraphs 5 to 8 of the judgment she said as follows:

“5.

This case requires me to compare and consider the evidence from Sarah Jordan and from the respondent [i.e. the appellant] about specific allegations made and I remind myself when I do that that it is the applicant [i.e. the respondent] who must prove its case in relation to each allegation and that the claimant must prove the case to the criminal standard. That standard is so that I am sure or that it is proved beyond reasonable doubt, to use another expression, that the respondent has committed the breaches that are alleged against him.

6.

In considering the evidence, I say at the outset that I found Miss Jordan to be a straightforward and honest witness in giving her account. I found her evidence to be clear. I am not persuaded that her withdrawal of an allegation in 2013 undermined her evidence in any way. Quite the contrary, it seemed to me to show that she was willing to accept when she had made a mistake and she was very clear that, in relation to matters to which I will turn in a moment, she had not made a mistake in these proceedings.

7.

When I consider the arguments that are raised by the respondent [i.e. the appellant] as to why I should reject her evidence, I do not find them convincing. He firstly invites me to find that Miss Jordan is not a truthful witness because she has given inconsistent evidence about the length of their relationship and the age of their son. It seems to me that the type of relationship that the respondent and Miss Jordan have had, means that any differences in description of its duration do not amount to a significant inconsistency in evidence. Any previous error in the age of her son is, clearly, a straightforward mistake and does not indicate that she is an inconsistent or unreliable witness.

8.

I have already addressed the second point that the respondent has made to me about the previous allegation that was made in 2013, an allegation which she withdrew, having accepted that she had made a mistake on that occasion.”

Below, as he did at the hearing of the appeal, the appellant sought to claim that Miss Jordan was deliberately attempting to get him into trouble, and to ruin his life, which he says he has got back together again and now has a permanent job. He claims she is trying to cause trouble for him. He claims that she frequently lied in previous proceedings and that effectively she is having “a laugh” at him and the Court in an attempt to get him locked up and to force him out of any relationship with his son, whom he has not seen for some three years. The judge dealt with these matters at paragraphs 9 and 10 of the judgment as follows:

“9.

The account that the respondent gives, that Miss Jordan who is trying to pull him back into a relationship by deception, is simply not credible when one takes into account of the fact that it is the respondent who keeps going back to her property. That makes no sense at all when he says that he does not wish to have any relationship with her and is not obsessed with her. In my judgment, it supports the contrary assertion, that he does want or did want to resume a relationship and that was why he persisted in breaching this injunction and attending at her property, often in breach of bail conditions imposed firstly by this court and also by the criminal courts.

10.

The respondent in this case has claimed to be truthful throughout but it is right to say that he has only today made partial admissions in relation to many of the allegations in the notice of committal. In relation to a specific part of the case that is made against him, which is the allegation that he threatened violence on 7^th January, at the outset, he did not accept that he had done it at all. Then, in cross-examination, he did accept that he had threatened violence but qualified his admission by saying it was directed at another person and not Miss Jordan. It seems to me that these changes are a strong indication that he has not been straightforward or truthful in his evidence.

……

20.

Finally, in considering the respondent’s case as a whole, there is no persuasive evidence to show that this case is one of Miss Jordan harassing the respondent, as the respondent claims. It is rather the respondent who has consistently gone back to her property to undertake what amounts to a campaign of pestering and harassment.”

The judge carefully considered all the evidence relating to the alleged breaches and concluded that the respondent had proved to the requisite criminal standard that the appellant was in breach of the terms of the order: see paragraphs 11-20 of her judgment.

In her sentencing remarks the judge said as follows:

“29.

As I say, based on your partial admissions and the evidence of Sarah Jordan, I have found those matters proved to the criminal standard.

30.

I now have to sentence you in relation to the totality of those breaches. I take account of the fact that the purpose of sentence in committal proceedings is to punish you for breaches of the court order, to secure future compliance with the order and also have regard to your rehabilitation and that I must weigh the aggravating and mitigating factors of these breaches.

31.

I turn, firstly, to the aggravating factors. I am satisfied that these were deliberate and intentional breaches. This injunction was designed to protect Sarah Jordan by keeping you away from her and her home. That was the purpose of the exclusion zone and the purpose of paragraphs 1 and 2. Each breach has involved you either communicating with her or, in respect of six of the seven breaches, deliberately attending at her address at times when she was bound to be at home.

32.

Next, I take the view that they are serious breaches. In particular, the breaches on 7^th January are serious. The breach at 1.45 in the morning involved threats of serious violence. The breach at six o'clock in the morning when you went back to the property involved actual damage to the property when you smashed the window.

33.

Thirdly, I take account of the timing and location of the breaches. I have already referred to the fact they occurred at Miss Jordan's home. The breaches, by and large, occurred at night or in the early hours of the morning. I have heard evidence from Miss Jordan about the effect of the breaches on her. She described herself, and I accept her evidence, as being scared of her own shadow, having to put plastic over the windows, fit extra security and padlock her back gates and it is clear that your conduct is causing significant distress to her. I am satisfied that she is a vulnerable person because she is the sole carer of a young child who is now aged 8 who lives at the property and who has, in fact, been present on most of the occasions when this order has been breached.

34.

I attach weight to the fact that your conduct shows a total disregard of court orders. These breaches occurred on seven separate occasions over a one and a half month period shortly after you were released from custody in October 2015 when you purged your contempt in relation to the last committal sentence that was passed upon you. In these proceedings, you were granted bail. Having been granted bail on 23^rd December, 2015 you went on to breach the injunction on a further four occasions. On the last two of those occasions, on 19^th and 21^st January, you had been granted conditional bail in criminal proceedings. Those criminal proceedings arose out of the events on 7^th January. Not only did you breach the order again while on bail granted in these committal proceedings, but you breached the conditions attaching to the bail granted in the criminal proceedings, which were conditions of no contact with Miss Jordan, a curfew and to keep away from Miss Jordan's address. There is no indication from your past conduct that you have respect for any form of court order or that you are likely to comply with court orders in the future.

35.

I attach weight also to the history of breaches that have been dealt with by earlier separate committal proceedings on three other occasions. On 29^th July, 2014 His Honour Judge Robert Owen QC passed a sentence of 36 weeks. District Judge Shorthose on 12^th June of last year passed a sentence of eight weeks and His Honour Judge Mithani QC passed another sentence of nine months on 18^th August 2015. Yet, within a matter of months after coming out of custody, you were breaching the order again.

36.

I must also consider the history generally of this matter, that there has been a history of injunctions being taken out for domestic violence and that this injunction, in its present form amended in 2014, in fact dates back to 2012.

37.

Finally, I have regard as an aggravating feature to your character generally. Your antecedent history which I have been shown shows a number of previous convictions which include in 2006 and 2009 carrying a bladed article; threats to kill in November 2006; and, more recently, assault occasioning actual bodily harm on 2^nd November 2012 when you were sentenced to 20 months imprisonment. The fact of those convictions means that the harassment and your threats of violence carry more weight with your victim than they might do if made by somebody without that history of offending.

38.

In mitigation, you are still only 28 years old. You did make partial admissions in these proceedings. The credit I can give you for that is limited because it did not avoid the trial taking place and, more importantly, it did not avoid the need for Miss Jordan to give evidence. It is notable that your justification for the hearing today when the breaches were proved was that, as you said, you wanted your day in court.

39.

I accept that you have made some effort to rebuild your life, that you have done a bricklaying course in custody and got your CSCS card. You say that you want to work and lead an honest life in the community but it is difficult to attach much weight to that because almost as soon as you come out of custody, you are committing further breaches of this order.

40.

I understand there is an emotional context that I take into account. It is clear that you have very great feelings for your son and it also seems that this continual campaign of harassment comes out of a relationship that you have found very difficult to give up. Those are factors that I consider but they do not excuse your conduct and, indeed, the presence of your child when many of the breaches have occurred aggravates rather than mitigates what you have done.

41.

The Sentencing Guideline Council suggest a starting point of six months for breaches of an Anti-social Behaviour injunction but that is for a first time offender for these types of offences and you are certainly not a first time offender. In my judgment, there is no alternative to an immediate custodial sentence. If I were to suspend a sentence, I could have no confidence that you would comply with its terms. There is no indication in the way that you have behaved, particularly offending on bail, that if you kept your liberty, the order would be complied with in the future.

42.

I pass a sentence which takes account of all the breaches rather than imposing consecutive terms and so I have regard to totality in passing the sentence that, in my judgment, is proportionate to your conduct as a whole and is the least sentence that reflects the seriousness of what you have done. I also have regard to the time you have already spent on remand, which totals 37 days.

43.

But for the limited mitigation and the time you have already served, the sentence that I would pass concurrent on all breaches would be one of 18 months. I reduce that to a term of 16 months to take account of the time you have spent and that limited mitigation. You will serve up to half of that sentence in custody and I reserve any applications to purge your contempt. Thank you.”

She subsequently amended that sentence for the reasons given in paragraph 44 of the addendum to her judgment where she said as follows:

“44.

In approving this transcript I have noted that the sentence passed does not reflect my intention in sentencing.

1.

From a starting point of 18 months (concurrent on all breaches) my intention was to reduce the sentence to reflect limited mitigation and then to give full credit for the 37 days Mr Gill spent on remand prior to the hearing. Those 37 days are the equivalent of a custodial sentence of 74 days (because of the effect of section 258 of the Criminal Justice Act 2003).

2.

To achieve my intention the sentence should have been one of 14 months and 23 days (concurrent on all breaches). I have varied the committal order to substitute this sentence.”

It appears that, on 22 April 2016, the appellant was sentenced for the criminal offences relating to the fourth and fifth alleged breaches of the ASBI to which he had previously pleaded guilty. The memorandum of conviction records that no sentence was imposed for the offence of criminal damage (breaking the window) and a sentence of six weeks imprisonment was imposed for a harassment offence although the offence to which the appellant actually pleaded guilty was in fact a public order offence; see paragraph 6 iv above.

As I have already said, the appellant appeared before us in person by means of a video-link. He presented his submissions forcefully and in an articulate way. In his grounds of appeal and in his argument before us the appellant relied upon three grounds of appeal:

The respondent appeared by Miss Clare Cullen of counsel, who submitted that the appeal should be dismissed because:

i.

The county court was the first sentencing court dealing with the incidents on 7 January 2016. HHJ Wall was, therefore, able to sentence for the breaches on 7 January 2016 and to do so without reference to any potential sentence in the Magistrates’ Court.

ii.

The findings of fact were made applying the criminal standard of proof. HHJ Wall had the benefit of hearing oral evidence and therefore her findings should not be interfered with on appeal.

It is well established law that:

“In a case in which the judge has had the benefit of oral evidence from the witnesses, has made findings of fact which are rationally explained, has described in detail his assessment of the respective witnesses as regards their reliability, and where his findings of fact differentiate with care as to what evidence from which witness is accepted in relation to which part of the history, no one witness being accepted as wholly reliable or rejected as wholly unreliable, an appellant who seeks to show that the judge's findings of fact, or some of them, are unsustainable faces a seriously difficult task. The judge's findings as to what was said between the Claimant and the Defendants are primary findings of fact, and his findings as to how the Defendants reacted to what was said to them are at least partly findings of fact, even if there may be elements of inference in that process. It has been said many times, Benmax v Austin Motor Co [1955] AC 370, Biogen Inc v Medeva Inc [1997] RPC 1 and Assicurazioni Generali SA v Arab Insurance Group [2003] 1 WLR 577 being only three of the examples of high authority, that an appellate court can hardly ever overturn primary findings of fact by a trial judge who has seen the witnesses give evidence in a case in which credibility was in issue.”

See Cook v Thomas [2010] EWCA Civ 227, per Lloyd LJ at [48].

I have no doubt that, in the circumstances of this case, there is no basis for this court to go behind the findings of fact made by the judge. Contrary to the appellant’s submissions, she carefully directed herself as to the criminal standard of proof and properly addressed the submissions and evidence presented by the appellant in relation to what he said was the unreliability of Miss Jordan’s evidence. It is clear from the judge’s careful consideration of the evidence relating to each of the alleged breaches that she had well in mind the arguments presented by the appellant’s in his defence. In my judgment, she was on the material before her, including the past history of the appellant’s conduct, entitled to reach the conclusion which she did, namely that all of the individual breaches had been proved. Even if Miss Jordan had been lying in relation to the proceedings in 2013, on the evidence before the judge the latter was clearly entitled to reach the conclusion that, in relation to the more recent breaches, the evidence of Miss Jordan could be relied upon. In a case such as this, the judge’s impression of the evidence and demeanour of the witnesses is clearly critical to his or her conclusion. There are no grounds in this case on which the findings of fact made by the judge can be challenged. Contrary to the appellant’s arguments, the judge’s conclusions were not merely speculation on her part; she weighed up each and every allegation and considered it against the appellant’s counter allegation on the basis of all the materials in this case.

Accordingly I would dismiss the appeal on the first ground.

The relevant approach that should be taken by the courts where there are concurrent criminal and committal proceedings in respect of the same incident or incidents is set out in Lomas v Parle (Practice Note) [2003] EWCA Civ 1804; [2004] 1 WLR 1642 at paras 46-49:

“46.

We feel that it would be helpful to offer some guidance on the inter-relationship between the Family Law Act 1996 and the Protection from Harassment Act 1997, as well as on the management of concurrent proceedings in the family, civil and criminal justice systems. The guidance which we give supplements that given by Hale LJ in Hale v Tanner (Practice Note) [2000] 1 WLR 2377.

47.

However effectively the proceedings are managed, a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act 1997. Of course, the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0–24 months. An important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. Nevertheless, there will be a shared deterrent objective in the punishment of domestic violence by imprisonment.

48.

Clearly, therefore, the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence. The defendant is often publicly funded to defend the proceedings in each court and may well have different solicitors and counsel in each justice system. There is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed, and that a transcript of its judgment is made available to the second court, as the judge directed in the present case.

49.

Experience suggests that proceedings in the criminal justice system are likely to require more extensive preparation and to prove more protracted than committal proceedings in the family justice system. Therefore the application to commit should be issued promptly after the alleged breach and listed without delay. That discipline will ensure that, if proved, the contempt will have been punished before any sentence in parallel criminal proceedings.”

Likewise in In Slade v Slade [2009] EWCA Civ 748; [2010] 1 WLR 1262, Wilson LJ summarised the case law and principles which apply to sentencing where there are concurrent proceedings at paras [15]-[20].

The judge was referred to both cases in the course of argument by Miss Cullen. The judge was clearly entitled to sentence the appellant in respect of the fourth and fifth breaches notwithstanding that he had already pleaded guilty to the criminal offences constituted by those breaches in the Magistrates Court. That is clear from both Lomas v Parle and Slade v Slade. There is nothing in the latter case which supports the appellant’s argument that, where there has been a plea of guilty in the Magistrate’s Court, the County Court should not proceed to sentence notwithstanding the absence of any actual sentence by the Magistrates Court. In my judgment the judge was clearly entitled to proceed to sentencing in respect of the fourth and fifth breaches of the injunction.

It is not clear from the certificate of conviction in the Magistrates Court whether in imposing a six week sentence, to run concurrently with the sentence already being served by the appellant for breach of the ASBI the Magistrates Court took into account the sentence already imposed in respect of the same offence by the County Court. It is difficult to see what basis there was for the imposition of any sentence in relation to those criminal offences in circumstances where the County Court has already punished the appellant for breaches of the injunction. However, whilst that may be an argument on an appeal against the Magistrates Court order, it does not affect the validity of the sentence imposed by the judge for breaches of the injunction. In any event it appears that the sentence imposed by the County Court was raised before the Magistrates Court. If there was a failure by the Magistrates Court to consider the sentence imposed by the judge for the incidents on 7 January 2016, that fact does not provide any basis for an appeal to this Court against the judge’s order.

As Miss Cullen pointed out, the judge was clearly entitled to have regard to the following factors not only by reference to the definitive guidelines produced by the Sentencing Guidelines Council in relation to breach of Anti-Social Behaviour Orders, but also in her general consideration of the case. These factors were:

“i)

the fact that there had been seven breaches of the order;

ii)

the fact that six of the breaches related to the appellant visiting Miss Jordan’s address late at night or in the early hours of the morning;

iii)

the seriousness of the breaches, in particular that committed on 7 January 2016, when there was a threat of violence and damage to property;

iv)

the vulnerability of Miss Jordan and the impact that the breaches had on her;

v)

that four of the breaches took place whilst the appellant was on bail for breach of the ASBI demonstrating “a total disregard of court orders;

vi)

that there had already been three previous committal orders against the appellant.”

However, despite these serious features of the case against the appellant, I consider that, taking all the circumstances into account, a sentence of 14 months 23 days was in fact manifestly excessive. What the judge in my view failed to do was to take into account:

I consider that he should have been given more credit for his two guilty pleas and that, taking into account the period of time the appellant had already spent on remand, and the fact that he had made genuine attempts to turn his life around and had obtained a job, which would be kept open for him on his release from prison, the correct sentence in this case is one of 12 months. Accordingly whilst I would dismiss the appellant’s appeal against the judge’s determination that he was liable for breaches of the injunctions, I would allow his appeal against sentence to the extent of reducing this sentence to one of 12 months.

I agree.