Leeds City Council v MacDonald [2007] EWCA Civ 1548

Case No B2/2007/1509

[2007] EWCA Civ 1548

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Venue ON APPEAL FROM LEEDS COUNTY COURT

(HIS HONOUR JUDGE CLIFFE)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday, 20 th November 2007

Before

LORD JUSTICE TUCKEY

LORD JUSTICE LATHAM

LORD JUSTICE JACOB

Between

LEEDS CITY COUNCILRespondent/Claimant

MICHAEL MACDONALDAppellant/ Defendant

(DAR Transcript of

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Mr S Read (instructed by Messrs Henry Hyams) appeared for Appellant.

for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

Judgment

[1]This is an appeal by Michael John Macdonald from a committal order made by HHJ Cliffe in the Leeds County Court on 14 June 2007, imposing a total sentence of 6 months imprisonment, suspended for 2 years, for three admitted breaches of an interim injunction made in the same court less than 3 months previously on 28 March 2007. It is not contended on behalf of the appellant that a suspended sentence was wrong in principle. What is said is that the 6 month term was too long.

[2]Since the end of 2005 the appellant has been a council tenant of a flat on the first floor of a purpose built block at 135 Silk Mill Drive in Leeds. There are five other flats in the same block and the injunction was obtained to protect the residents of those flats from antisocial behaviour by the appellant. Those in the two ground floor flats below the appellant, Mr and Mrs McLoughlin and their two very young children in 133 and Mr Robinson in 131 were the most affected.

[3]The application for the interim injunction was made on the basis of a schedule of incidents. At the committal hearing, when the judge continued the injunction, the appellant admitted six of the seven incidents alleged. These were: i) From mid-January 2006 onwards the residents had been disturbed by gatherings of 3 to 4 people held at 135 Silk Mill Drive, during evenings and nights, approximately every fortnight on average. These visitors to the defendant were often rowdy and had been drinking and there was often loud music played. ii) On 22 February 2007 residents were woken in the middle of the night by the sound of fighting outside 133 Silk Mill Drive. The defendant was seen to be defending himself from a middle-aged woman who was accompanied by two younger men. She was shouting: “You fucking paedo. Stay away from my fucking daughter.” iii) On Saturday 3 March 2007 at 4.00 am the defendant banged repeatedly on the door of 133 Silk Mill Drive, shouting threats through the letterbox and causing distress to the young family within. The defendant then went to his own flat and was heard to shout abuse and threats and slam his front door. The threats were not violent in nature. This continued for 10 minutes at which point the police arrived. iv) On Saturday 3 March at 3.30 pm the defendant could be heard playing a CD by a well-known comedian, containing foul language, with the windows open. The noise and abuse caused distress and nuisance to a resident. v) On Saturday 3 March at 4.00 pm, the defendant was seen in Silk Mill Drive wearing only boxer shorts and a vest. He was shouting and swearing aggressively at a young Asian man, who the defendant thought had thrown an egg at his window. vi) On the same day just after 4.00 pm the defendant began shouting and ranting and banging violently on the door of 133 Silk Mill Drive. The defendant was abusive and intimidating to the occupier of and visitor to 133 Silk Mill Drive until the police arrived.

[4]Mr McLoughlin, who was the tenant of 133, made a statement dealing with the events of 3 March, which featured a number of the incidents to which I have referred, in which he said:

“I am absolutely at my wits end. I have never experienced anything like this before and really do not know how to deal with it. Mr MacDonald appears to be a person to whom violence and verbal abuse are a first resort rather than a last. I have never been in a fight in my life and don’t want to start now. I feel that I should be able to answer the door of my home without fear of being attacked by my neighbour, and come and go without having to check that no assailant is lurking outside waiting to jump me … I am so scared for my wife and my children with this man living so close to us. I hardly dare to leave them to go to work for fear something will happen. I just want my family and I to be given some protection from the Court, so that we are able to feel safe in our own home, and to get back some of the quality of life that we used to have before Mr MacDonald moved in and began behaving in this bullying and frightening manner.”

[5]The injunction made against the appellant on 28 March, and continued by the court at another hearing between then and the time when the judge continued at the committal hearing, forbade the appellant from:(a) engaging in conduct capable of causing nuisance or annoyance to anyone visiting or residing in Silk Mill Drive, Leeds.

(b) Approaching or contacting Mr McLoughlin or his wife.

(d) Allowing any person under the age of 18 to enter or remain in 135 Silk Mill Drive.

[6]The three breaches which the appellant admitted before the judge were particularised as follows: i) On 21 April 2007 the defendant hosted a gathering at the property from 10.30 pm until the early hours of the morning. During this time the defendant and his guests were heard to play loud pop music, make banging noises and shout and swear in raised voices, so causing a nuisance to Mr Paul Robinson and his family. ii) On 3 May 2007 in the early evening, Mr Robinson was alarmed and caused nuisance by the erratic driving and parking of a red Seat car in front of the Silk Mill Drive flats. The car was being driven by a young woman and there were three passengers including the defendant. The others were the defendant’s visitors. All the passengers had been drinking and found Mr Robinson’s reaction to the driving to be funny. iii) On 3 May 2007 between late evening and about 5.00 am the next day, the defendant hosted a gathering at the property. During this time the defendant and his guests were heard to play loud pop music, make banging noises and shout and swear in raised voices, so causing a nuisance to Mr Paul Robinson and his family.

[7]Mr Robinson had made a statement outlining those incidents and explaining how this affected him. His statement concluded by saying:

“I really do not know how much more of this I can stand … One of the worst things about this situation is the fact I dare not have my two children over to stay. This causes me real sadness. I love my children and miss them a lot. I feel that MacDonald is essentially stealing from me time that should be spent with my children. I am also worried about having my mother or friends over, and am very concerned about the safety of my girlfriend, due to the violent and unpredictable nature of MacDonald’s behaviour. I never know when the next outburst will come, and it does play on my nerves. Were it not for MacDonald, this would be a nice place to live. I get on with the other neighbours and we look out for one another. If MacDonald would only show us the slightest respect and consideration I am sure we could all get on, but I cannot see this ever happening. This whole business is affecting my health and my emotional wellbeing.”

This whole business is affecting my health and my emotional wellbeing.”

[8]So it was that the judge came to sentence the appellant for his admitted breaches of the injunction. When sentencing him, he said that he regarded the breaches as serious. He imposed three months and three months concurrent for the first two breaches and three months consecutive for the third breach. He had only suspended the sentence, he said, because of the appellant's admissions. When passing the suspended sentence, the judge said:

“ Make no mistake, if you come back to this court and are found to have breached the injunction, however that has occurred, you, your noisy visitors or whatever, that sentence will be invoked; in other words, you will go to prison for six months to begin with and you will get something on top … The Housing Act was passed to protect decent, honest law-abiding citizens from people like you. They should not have to live next to people like you. This is not a case of reducing the nuisance. It is a case of eradicating the nuisance. It stops now. You go home and drop a plate on the floor in the middle of the night causing a disturbance to them, you are at risk of going to prison. It is as serious as that. Are you clear? Michael MacDonald: Yes.”

Michael MacDonald: Yes.”

[9]Mr Read, in his well-thought-out submissions, says that six months was excessive. He reminds us that, as the maximum sentence for contempt is two years, higher sentences must be reserved for the most serious cases. He also reminds us that the court must be careful to avoid imposing a longer than commensurate term, simply because the sentence was being suspended. Invoking those principles, Mr Read submits that this was not so serious a case as to merit a sentence of 25% of the maximum. The antisocial behaviour involved in the breaches was not targeted at anyone. No injuries were caused. The breaches did not involve threats of violence. He points out the difficulties of reducing noise in this block of flats where there is a lack of sound insulation and explains that the noises heard by those below (which sounded like people doing weights) were no more than the sound of chair casters running over an uncarpeted floor. He says that the appellant wants to get on with his neighbours. There had been some improvement in the appellant’s behaviour after the injunction was imposed, although Mr Read accepts that it was not enough. He points to the jeopardy which the appellant is in, given that he is at risk of going to prison for a substantial period for as little as dropping a plate, if the judge’s words are to be taken literally.

[10]Persuasively though those submissions are put, I do not accept them. I think the judge was right to regard the breaches as serious against the background to which I have referred and the serious consequences which the appellant’s persistent, intimidating, utterly inconsiderate and boorish behaviour had had on the lives of his neighbours. The strong warning which the judge gave was entirely justified and needed to be reinforced by strong sanction if it was not obeyed. The need for this was demonstrated by the fact that the appellant had largely ignored the interim injunction and breached it within a very short time of it having been made and renewed. For those reasons I would dismiss this appeal.

[11]I agree.

[12]I also agree.

Order

Appeal dismissed