Stafford Borough Council v Haynes & Ors [2003] EWCA Civ 159

[2003] EWCA Civ 159

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE STAFFORD COUNTY COURT

(HIS HONOUR JUDGE MITCHELL)

Venue Royal Courts of Justice

Date Thursday, 23 January 2003

Strand

London, WC2

B E F O R E:

LADY JUSTICE HALE

LORD JUSTICE LATHAM

STAFFORD BOROUGH COUNCIL

Claimant/Appellant

-v-

HAYNES AND OTHERS

Defendants/Respondents/

(Computer-Aided Transcript of the Stenograph 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)

MR A VERDUYN appeared on behalf of the Applicant

THE RESPONDENTS did not appear and were not represented

J U D G M E N T

(As Approved y the Court)

Between

Stafford Borough CouncilAppellant

Haynes & OrsRespondent

LADY JUSTICE HALE:

[1]This is a claimant local authority's appeal against part of the order made by His Honour

Judge Mitchell in the Stafford County Court on 9 August 2002:

"2. Upon the defendants being present and respectively admitting that the factual allegations made against them under paragraph 4 of the notice are true (a) the application to commit stand adjourned to a date to be fixed not to be restored earlier than first (i) any alleged breach by a defendant of the Courts Injunction Order of today (ii) the final determination of any criminal proceedings arising out of the events of 5 August 2002 (iii) further order of the court."

In a nutshell, the appellants argue that they were entitled to have their application to commit heard, and not put off to some future date which might never happen.

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

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

"The High Court or a county court may, on an application by a local authority, grant an injunction prohibting a person from - (a) engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises, (b) using or threatening to use residential premises to which this section applies for immoral or illegal purposes, or (c) entering residential premises to which this section applies or being found in the locality of any such premises."

The section applies to residential premises among others which are dwelling houses held under secure or introductary tenancies from the local authority (s152(2))

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

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

"1. from using or threatening violence [against two named residents] their children, family or visitors or any other person residing, visiting or otherwise engaged in lawful activity on the land and buildings shown on the attached map and outlined in black (the "

Estate"). 2. from engaging in or threatening to engage in conduct which is a nuisance and annoyance to [the same named residents] their children, family or visitors or any other person residing, visiting or otherwise engaged in lawful activity on the Estate." A power of arrest pursuant to section 152(6) of the 1996 Act was attached. Both were expressed to last until 28 August 2002. They were based upon evidence of abusive and threatening behaviour towards the neighbours and their children in a context of generally anti-social behaviour by members of both families. The orders were personally served upon Mrs Anderson that day.

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

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

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

"(i) On 5 August 2002 the Defendant, immediately after her boyfriend had been served with a without notice injunction for anti-social behaviour under section 152 of the Housing Act 1996, with a power of arrest attached and whilst her boyfriend and his son were being arrested, shouted at the process server 'I'll fucking get you." (ii) Also on 5 August 2002 whilst her boyfriend was being arrested the Defendant attacked one of the process servers by hitting him on the back of the head."

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

"(i) On 5 August 2002 whilst a police officer and process servers were outside his home, after being served with an injunction on the defendant under section 152 of the Housing Act 1996 for anti-social behaviour, with a power of arrest attached and his son, Benjamin Haynes was being arrested for breach of a similar injunction, he scraped a screwdriver on the outside of the wall in a threatening manner. (ii) Also on 5 August 2000 the defendant shouted at a process server 'Shut your fucking mouth, get off my fucking property.' (iii) Also on 5 August 2002 the defendant shouted at another process server 'You think you're a big man whilst the old bill are here, you wait till their not here, then I'll get you.' (iv) Also on 5 August 2002 the defendant walked towards the second process server and pushed him with his shoulder into nearby bushes. (v) Also on 5 August the defendant said to the first process server 'I know where you live' and shouted to his girlfriend 'Get the registration numbers.'"

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

"(i) On 5 August 2002 whilst being served with an anti-social behaviour injunction for anti-social behaviour under section 152 of the Housing Act 1996, with a power of arrest attached, threw the papers on the floor shouting 'I ain't fucking picking it up.' (ii) Also on 5 August 2002 the defendant shouted at the process server 'Bitch!' and whilst kicking a back gate to his father's home shouted 'There's a prostitute here to see you' and addressing the process server shouted 'You could stand on the corner of W. Street and earn more money you slag, espeically with legs like those. (iii) Also on August 2002 the defendant shouted at the process server 'You fucking slag, I know where you fucking live.' (iv) Also on 5 August 2002 the defendant struggled violently with a police officer whilst resisting arrest. (v) Also on 5 August 2002 the defendant hit the second process server in the face with his elbow on the jaw. (vi) Also on 5 August 2002 whilst in a police car the defendant kicked the inside of the police car door."

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

[12]The judge, however, was concerned about a number of matters. He refers to these in his judgment. Were the terms of the original order too wide? He had some recollection of the case of Enfield BC v B (a minor)

[2000] 1 All ER 255

. Could process servers come within the protection of section 152? Again, he thought that Enfield BC v B (a minor) might have some relevance to that. Would it have been a contempt if there had not been such an order, but they had been serving the process on behalf of neighbours bringing actions against these defendants? Had there in fact been a deliberate breach of the court orders, including whether they had had proper notice of its terms, given, in particular, that the two Haynes had simply touched the document but had not read it? There was also the issue that the police might be intending to pursue criminal proceedings about the incident. Having mentioned all of those matters,

the judge continued:

"For the reasons which I have indicated, it seems to me that, so far as the applications for committal are concerned, they merit further consideration, and detailed consideration and proper consideration before any question could arise as to punishment for contempt. The order I propose to make accordingly is to adjourn the committal applications on the defendants' acknowledgement by way of admission of the facts alleged, and to order that the proceedings should not be restored so long as the defendants comply with the terms of the fresh order which will now be made by the Court until such time as the question of any criminal proceedings has been finally determined."

It was in those circumstances that he made the order already quoted.

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

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

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

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

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

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

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

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

[21]The point is made that criminal proceedings and contempt proceedings are two completely separate things. They serve to some extent, although not entirely, separate purposes. In this connection, the matter has recently been considered by this court in London Borough of Barnet v Hurst

[2002] EWCA Civ 1009

which was decided on 17 July 2002. Brook LJ set out at paragraph 33 the principles which had been established at common law before the coming into force of the Human Rights Act 1998. "(1) The jurisdiction of the court when exercising its jurisdiction in contempt proceedings is quite separate from any criminal proceedings which may be brought in the criminal courts, not with standing that it may arise out of the same set of factual circumstances. (2) It is founded on an inherent power which derives from the jurisdiction of the court to enforce its orders. (3) It is important that contempt proceeding should be dealt with swiftly and precisely. (4) On the other hand a court has a discretion to adjourn contempt proceedings pending the outcome of other proceedings, but only where it is satisfied there would otherwise be a real risk of prejudice which might lead to injustice."

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

[1997] 1 FLR 762

at page 765 E to F:

"In approaching this matter we must remind ourselves of the overriding principle that orders of the court should be obeyed. That is an essential feature of the rule of law and it would be a recipe for anarchy if orders of the court could be flouted with impunity. We also, in this field, regard it as particularly important that where orders are made for the protection of a party, that party should be assured of effective protection. The principle that breaches of orders should ordinarily be dealt with 'swiftly and effectively' is undoubtedly correct and has not in any way been challenged."

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

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

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

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

LORD JUSTICE LATHAM: I agree.

ORDER

Appeal allowed. Respondents to pay Claimants' issue fee in the sum of £120 and application fee of £50 by each claimant.