Middlesbrough Borough Council v Turnbull [2003] EWCA Civ 1327

Case No B2/2003/1111

[2003] EWCA Civ 1327

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE MIDDLESBROUGH COUNTY COURT

(HIS HONOUR JUDGE BRIGGS)

Venue Royal Courts of Justice

Date Thursday, 28th August 2003

Strand

London, WC2

B E F O R E:

LORD JUSTICE KENNEDY

LORD JUSTICE PETER GIBSON

Between

MIDDLESBROUGH BOROUGH COUNCILRespondent

-v-

Between

CHRISTOPHER TURNBULLApplicant

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MISS S WOOLRICH (instructed by Messrs Appleby, Hope & Matthews, Middlesbrough TS6 0LE) appeared for Applicant

MR A PEMA (instructed by Head of Legal Services, Middlesbrough Borough Council, PO Box 99A, Town Hall, Middlesbrough TS1 2QQ) appeared for Respondent

J U D G M E N T

(As approved by the Court)

LORD JUSTICE KENNEDY:

[1]This is an appeal from a decision of Judge Briggs sitting at the Middlesbrough County Court who, on 7th April 2003, ordered that the appellant be committed to custody for contempt for a period of two years, with liberty to apply to the judge to purge his contempt and to ask for his release. No such application has been made, as I understand it, because the appellant does not accept the whole of the factual basis upon which the learned judge acted.

[2]The appellant is 19 years of age, having been born on 3rd November 1983, and for sometime he has been misbehaving with motor vehicles in an area of Middlesbrough known as the Triangle, causing danger and distress to those who live there.

[3]On 3rd September 2002 the local authority sought and obtained an injunction which excluded him from that area. The appellant left court on that day before the order was made, but it was served on him personally later the same day by the local authority's enforcement officer, Monica Marron, and its terms were explained to him. Before us no issue arises as to the making or the service of that order.

[4]The appellant did not comply with the order, and on 17th October 2002 the local authority applied for him to be committed to custody for breach of the terms of the order. He was not arrested until about 12th December 2002, but he was then committed to custody for a period of three months. In the normal way he was released after serving half of that period, and once again there were complaints being made to the local authority that he was in breach of the September order.

[5]On 27th January 2003 a resident on the Grove Hill Estate, which included the triangle, and who did not want to be identified but who was described as resident A, telephoned Monica Marron to say that the appellant had been riding a motorbike fast and dangerously and doing wheelies on Meadowfield Avenue at about 3.30pm when young children were returning home from school. Monica Marron wrote on the same day to the appellant telling him that he was in breach of the injunction again, and that if she continued to get complaints about his behaviour she would be making an application for a committal hearing.

[6]Nevertheless, on 4th February 2003 the same complainant made another telephone call to Monica Marron to say that the appellant was back in the area and had been selling cigarettes outside 9 Meadowfield Avenue, which it seems is the home of his aunt, and that since his release from prison cars had been dumped in the area. On 3rd February 2003 the complainant had seen him driving a Ford Fiesta car doing handbrake turns along Meadowfield Avenue, causing fear, alarm and distress to residents.

[7]On 17th February 2003 Monica Marron received a report from the Home House Wardens that the appellant had been seen outside a shop in Meadowfield Avenue causing alarm and distress to residents.

[8]On 18th February 2003 Monica Marron received a Home House Warden's report saying that the wardens had seen the appellant at about 3.30pm riding a green 600cc motorbike with no helmet down Meadowfield Avenue, onto Rosecroft Avenue and then onto Ashfield Avenue. Mr Shea was one of the wardens on patrol on that day. He was with another warden named Wayne Fishpool and on 18th March 2003 he set out in an affidavit what he had seen on 18th February. It included the appellant's friend, Michael Brady, telling Mr Shea, "You better not have phoned the fucking police."

[9]On 23rd February 2003 Monica Marron received a Home House Warden report that the appellant had been outside 9 Meadowfield Avenue with six other youths, causing fear, alarm and distress to residents.

[10]On 21st March 2003 the appellant was at Teesside Magistrates' Court in relation to another matter. He was represented by Mr Walker of Appleby Hope & Matthews, his present solicitors, and the matter was adjourned to 3rd April 2003, a significant date. Jeanette Louise Thompson, a local authority solicitor, also happened to be at court on that day, 21st March, and she was aware of the adjournment.

[11]On 27th March 2003 Monica Marron received information that the appellant had been seen outside 9 Meadowfield Avenue on four occasions on Saturday 22nd March and on three occasions on Sunday 23rd March. A complainant resident told Monica Marron that he or she had seen the appellant driving a white Ford Fiesta at speed and in a dangerous manner along Meadowfield Avenue on numerous occasions.

[12]Monica Marron also received telephone calls from other residents who said they wanted to remain anonymous for fear of reprisals, and said that the appellant was visiting 9 Meadowfield Avenue, Grove Hill on a daily basis.

[13]During the afternoon of Wednesday 26th March at about 4.30pm Mr Ladyman, an assistant warden manager, saw the appellant in the prohibited area. When the appellant saw him he picked up a football and ran off.

[14]Monica Marron was concerned about the effects of the appellant's unchecked behaviour on other youths, who saw him as a role model, and so on Monday 31st March 2003 the local authority once again went to the County Court which issued a notice in form N78 requiring the appellant to show good reason why he should not be committed to prison for breach of the order made on 3rd September 2003 if it be shown that he had acted in breach of the order as alleged in the schedule, which set out those incidents between 27th January and 26th March 2003 to which I have just referred.

[15]The court determined that the local authority's application should be heard on Monday 7th April, and on 1st April 2003 the court sent to Appleby Hope & Matthews a notice to that effect. The local authority for its part questioned with the court the proximity of the hearing date: because paragraph 4.2 of the Practice Direction to Order 29 of the County Court Rules provides as follows:

"Unless the court otherwise directs, the hearing date of a committal application shall be not less than 14 clear days after service of the claim form or of the application notice, as the case may be, on the respondent. The hearing date must be specified in the claim form or application notice or in a Notice of Hearing or Application attached to and served with the claim form or application notice."

[16]The court officer advised the local authority that as a matter of policy the Middlesbrough County Court did list committal applications within seven days of receipt, so the local authority took active steps to ensure that the appellant was properly served and was aware of the hearing date.

[17]On 2nd April 2003 the papers were served on the applicant's mother, with whom the applicant lived, and on 3rd April they were served on the appellant personally in the Magistrates' Court at the hearing which had been adjourned from 21st March, and thus it is clear that the appellant received the papers when he had his solicitor immediately to hand. His reaction showed that he had already seen the papers served at his home on his mother on the previous day. He tried to return the papers which were served personally upon him to Monica Marron and professed to be unable to read, but was told that if necessary he should consult his solicitor.

[18]On 7th April, the day fixed for the hearing, the appellant was arrested at 8.40am on suspicion of theft of a motor vehicle and other offences, and he was held in custody at South Bank police station. He asked to speak to Mr Walker, his solicitor, so Appleby Hope & Matthews were contacted. The appellant told them that because he was in custody he would be unable to get to the County Court. That information was relayed to the County Court, which at about 10.15am got in touch with police station and it emerged that it was uncertain whether the appellant would be held in custody for any length of time. It seems that he could not be interviewed at once because Mr Walker was not available, but after a time the appellant agreed to be interviewed without a solicitor. He was interviewed at 12.56pm and released at 2.10pm, there being insufficient evidence to charge him.

[19]There is simply no evidence before us as to what he did then. It is pointed out that the police station recorded his property and that in that record he is only shown to have £1, and that, it is said, would have been insufficient for him to pay the bus fare from South Bank to Middlesbrough County Court, but he did not, for example, it seems telephone either his solicitor or the County Court to explain his predicament. The documentation does suggest that if he had asked the police to assist him in relation to his required appearance at the County Court, the assistance would have been forthcoming.

[20]In the event, at 3.25pm, at the County Court, his case was called on. He was not there. Mrs Thompson, the solicitor for the local authority, opened the matter, and called Monica Marron, Trevor Shea and Paul Ladyman. The judge found that the order of 3rd September 2002 had been breached in the manners alleged, and made the order for committal which is now being challenged in this court.

[21]The order could not be acted on for some time because the appellant was not there and he was not arrested until 29th April 2003. Meanwhile, it seems, his solicitors were in contact with the County Court. We have been told this morning that a telephone call was made on the following day, 8th April and on 15th April, and again, on 27th April, those solicitors gave notice of having been appointed to act in relation to this matter. The Appellant's Notice was not filed at Teesside County Court until 6th May and in the event that was the wrong place at which to file it. It was not filed with this court until 16th May. It is said on behalf of the appellant by Miss Woolrich that as soon as he was arrested his solicitors did act with commendable promptitude, and that of course is right. But it is clear as a matter of inference that this appellant was well aware of the decision of the court on 7th April, very soon after that decision had been made. The Appellant's Notice evoked a Respondent's Notice for which an extension of time was required, and leave to file that notice out of time has been given by the Registrar.

[22]On 10th July 2003 the appellant made a statement in which he denies most of the allegations which the judge found to be proved, but admits some breaches of the order of 3rd September 2002.

[23]A number of grounds of appeal appear in the documentation before us. First, however, Miss Woolrich has to address the question of time. The Appellant's Notice was plainly not served within 14 days of the decision which the appellant wants to appeal, and there is simply no evidence that for any significant part of that 14-day period he was unaware of that decision. On 10th April 2003, as I have already said, some three days after the order was made, his solicitors wrote to the court in terms which clearly indicate that they were fully aware of the order which had been made, and indeed of the punishment which the court had considered to be appropriate.

[24]There are grounds which the appellant now wishes to advance. One of the grounds not dealt with by Miss Woolrich in her oral submissions this morning relates to the form N78. The question is raised as to whether that form complies with the requirements of the Human Rights Act 1998 because, it is said, it casts a burden of proof upon the appellant which should not be cast upon him. In my judgment there is simply no force whatsoever in that ground of appeal and Miss Woolrich was entirely right not to seek to pursue it. The situation was and is that if a person is alleged to be in breach of a court order, as was the case in relation to this appellant, then the form N78 is served on the basis that if the authority responsible for the service of the form is able to establish the facts which are alleged to constitute the breach of the order, then the alleged contemnor is to be given the opportunity to show cause why he or she should not be detained in custody. That does not call into question in any way the provisions of the European Convention on Human Rights.

[25]The next point taken on behalf of the appellant does have some more substance. That is the apparent failure to comply with paragraph 4.2 of the Practice Direction to which I have already referred. In a particular case it may well be that if there is a failure to comply with the Practice Direction, a contemnor can say that he has had insufficient time to instruct solicitors, to seek funding, or to obtain evidence upon which he would wish to rely, and thus that he has not been able properly to advance the case which he would wish to advance in relation to the allegations made against him. But in the present case none of that appears from the documentation before us. This appellant had the services of a solicitor from the moment that the documentation was served upon him, on 3rd April, if not indeed on the 2nd. He never, either himself or through solicitors, sought any indulgence from the court in terms of seeking extra time. He has not even today suggested that he was in any way prejudiced by the failure of the court to comply with the requirements of paragraph 4.2 of the Practice Direction. It seems clear to me that had he or those instructed by him asked for further time the court would have given proper attention to that request. Although this amounts to what is on the face of it a non-compliance with the normal practice as set out in the Practice Direction, it is to be observed that paragraph 4.2 begins with the words "unless the court otherwise directs". It is clear upon the facts of this case that in this case the court did otherwise direct in relation to the period which should elapse before the hearing took place. Whether as a matter of practice it should do so is a matter which no doubt will be considered by that court in relation to other occasions. Indeed, there is already in the papers an indication that consideration is being given to the practice which apparently has been adopted thus far by the Middlesbrough County Court.

[26]Had there been a non-compliance with the terms of the Practice Direction, which in my judgment there was not, it would have been necessary for us to consider authorities such as in particular the decision of this court in Nicholls v Nicholls

[1997] 1 WLR 314

, where Lord Woolf MR said, at 327, in relation to committal orders:

"1. As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with. It remains the responsibility of the judge when signing the committal order to ensure that it is properly drawn and that it adequately particularises the breaches which have been proved and for which the sentence has been imposed. 2. As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except insofar as the interests of justice require this to be done. 3. Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended. 4. When considering whether to set aside the order, the Court should have regard to the interests of any other party and the need to uphold the reputation of the justice system. 5. If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will not consider exercising its power to order a new trial unless there are circumstances which indicate that it would be unjust not to do so."

In my judgment had there been non-compliance with the requirements of the Practice Direction, then it would have been appropriate, in the light of Nicholls v Nicholls, to say that here there is no prejudice demonstrated, and there is therefore no reason to grant any form of relief in relation to that particular non-compliance.

[27]There are other points taken in the grounds of appeal which again Miss Woolrich has not sought to advance. It is said that the notice to show cause included acts not prohibited by the order and not substantiated. The judge was careful not to rely on those paragraphs which related to matters outside the scope of the original order. In my judgment, there is no substance in that ground of appeal.

[28]It is pointed out that the proceedings went ahead without the appellant being present or represented. That of course is true, but that occurred in the circumstances to which I have already referred, and in those circumstances it seems to me that upon the particular facts of this case it was appropriate for the court to proceed as it did.

[29]There is also a complaint as to the use of hearsay evidence because, as I have already indicated, some of the residents were prepared to say things to Monica Marron but were not prepared to come and give evidence about those matters. Such evidence is plainly, in my judgment, admissible in this type of litigation, but of course the fact that it is hearsay goes to weight. In this case that evidence was supported by other direct evidence from wardens as to what they said they had observed. In consequence there was ample direct evidence of breaches of the September order.

[30]The thrust of this appeal really at the end of the day, as it seems to me and as Miss Woolrich recognised, lies in the fact that the learned judge chose to impose the maximum penalty which was available to him, namely that the appellant should be detained for a period of two years. It is trite law to say that a maximum penalty should be reserved for the worst cases and there were factors here to which the judge, as it seems to me, ought to have particular regard. There was first of all the age of the appellant and then, as Miss Woolrich pointed out, there was the fact that although the conduct in which he engaged was clearly distressing for those who lived in the area of the Triangle, it did not include, on the face of it, personal hostility, abuse or violence. It is true, as Mr Anesh Pema on behalf of the respondent pointed out, that the appellant seems to have engaged in his conduct not only after the original order was made, but immediately after the sentence of imprisonment had been served in relation to the breach of that order and showed no signs of desisting. But all that said, it has to be accepted that this conduct in relation to this young man could not be regarded as reaching the gravity which would call for a sentence of two years which the learned judge imposed.

[31]Miss Woolrich accepts that in the light of what occurred, and in particular in the light of the fact that he had already had to serve a sentence in custody for non-compliance with the order made in September 2002, the sentence of the court had to be significantly longer than was imposed on the first occasion in relation to breach of the September order. With that I agree. But in my judgment a sentence so far as these breaches established on 7th April 2003 are concerned should have been one of nine months' detention rather than one of two years, and to that extent I, for my part, would be prepared to interfere with the decision of the learned judge.

[32]Technically, I would grant this applicant leave to appeal out of time in relation only to penalty, and I would allow the appeal to the extent that I have indicated.

LORD JUSTICE PETER GIBSON: I agree with the reasoning of my Lord and with the conclusion which he has reached and the order which he proposes. I only add a few words of my own on two points.

[34]The first is the practice of the Middlesbrough County Court to list committal hearings only a few days after service of the committal application. We are told that this is the practice of other County Courts as well, though we are also informed that adjournments are granted if the applications for committal are opposed. That practice, in my judgment, needs reconsideration in the light of paragraph 4.2 of the Practice Direction on committal applications. True it is that the requirement of a gap of not less than 14 days after service of the application notice before the hearing date is subject to a contrary direction from the court. But the minimum period specified in paragraph 4.2 reflects the need, spelt out in paragraph 4.6(1), for the respondent to be allowed a reasonable time for responding to the committal application, including, if necessary, preparing a defence. To have a general practice greatly abridging that period seems to me undesirable. However, for the reasons given by my Lord, the shorter period allowed in the present case did not cause any injustice or prejudice to the appellant.

[35]The second point relates to the length of the sentence. In Hale v Tanner

[2000] 2 FLR 879

, Hale LJ (with whom Swinton Thomas LJ and Sir Christopher Slade agreed) made a number of observations on sentencing for contempt. Although she stressed that what she said was said in the context of family cases, which raise different considerations from those elsewhere in the civil law, two of her observations I find helpful and are of general application. At page 884 she said this:

"29. Fourthly, the length of the committal has to depend upon the court's objectives. There are two objectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity. 30. Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of 2 years which is available."

[36]The contempts in the present case were serious and show a willingness on the part of the appellant to flout orders of the court. He had already been committed for three months for an earlier contempt and can, as Miss Woolrich rightly accepted, expect to receive a heavier sentence than that which was imposed on 17th October 2002.

[37]However, the contempts with which we are concerned are not of the greatest gravity. They, for example, do not include violence or direct threats against anyone, and the appellant is only 19 years old. In all the circumstances, in my judgment the sentence passed by the judge was, with all respect to him, manifestly excessive. I too agree that a sentence of nine months should be substituted for the two years which the judge imposed.

ORDER

Application for permission to appeal out of time granted in relation only to penalty, and the appeal allowed to the extent of reducing the penalty from 2 years to 9 months; detailed assessment of the Applicant's Community Legal Services Funding certificate. (Order not part of approved judgment) ______________________________