Lukjanenko v Medway Council [2018] EWCA Civ 612

[2018] EWCA Civ 612

Case No A2/2018/0309

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CANTERBURY COMBINED COURT

Mr Recorder Royall

ME15C00700

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

Date 27/03/2018

Before

LORD JUSTICE MCFARLANE

LORD JUSTICE PETER JACKSON

Between

Eugene LukjanenkoAppellant

Medway CouncilRespondent

The Appellant represented himself

Mark Chaloner (instructed by Medway Council) for Respondent

Hearing Hearing dates: 14 March 2018

Judgment Approved

LORD JUSTICE MCFARLANE :

[1]For a number of years, the appellant, Mr Eugene Lukjanenko, has been involved in a campaign against Medway Council and certain of its employees in which he seeks to complain in the strongest terms about the council’s actions in applying for and obtaining a care order with respect to his son and, thereafter, limiting, with the approval of the Family Court, the amount of contact that he has with his son.

[2]Such has been the extent of the appellant’s campaigning behaviour that two separate sets of court injunctions have been made. Firstly, there is a Reporting Restriction Order (RRO) which restricts his ability to report or publish information relating to his son, and, secondly, an order under the Protection from Harassment Act 1997 which prevents him from harassing Medway Council social workers.

[3]The RRO was made by Mrs Justice Theis on 10 November 2015. The order is in conventional terms and, in particular, at paragraph 13 identifies the “prohibited publications” covered by the

[4]Clause 15 of the order identifies “permitted publications” which are unaffected by the terms of the order.

(g) (‘the public domain provision’):

“15 Nothing in this order shall prevent any person from:… g) Publishing information which before the service on that person of this order was already legally in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England or Wales.”

[5]With those detailed provisions in mind, it is helpful to highlight the aspects of clauses 13 and 15 which, as I shall go on to demonstrate, are of particular relevance in this appeal. Firstly, the father admits that on a number of occasions in the late Summer of 2017 he published information on his ‘Facebook’ wall which included: i) His son’s first name; ii) The name of the contact centre at which he sees his son; iii) The day and month of his child’s date of birth, but not the year; iv) A video which includes film of a placard on which there is a picture of his son’s face, albeit taken some years ago.

[6]Secondly, the public domain provision at clause 15(g) is relevant because, prior to the proceedings, the son was named when he took part in a broadcast interview on a Russian television channel which operates within England and Wales.

[7]The original order made under the Protection from Harassment Act 1997 was made by HHJ Hammerton on 30 September 2015. The injunctive provision was as follows:

“Eugene Lukjanenko be forbidden whether by himself or by instructing or encouraging or permitting any other person from displaying to the public in any way in any place the names, contact details (telephone number, email, home postal address) or photographs of any employees of Medway Council until 30 December 2015 or further order of the court, pursuant to the Protection from Harassment Act 1997.”

[8]On 20 November 2015 HHJ Hammerton extended the injunction until 12 January 2016.

[9]Finally, on 11 January 2017 HHJ Coultart varied the injunction to include the names of four specific employees or former employees of Medway Council and provided that the injunction would be varied “to continue until further order, with liberty to the defendant to apply on notice for its discharge or variation”.

[10]Despite the making of the RRO and the Protection from Harassment Act order (“POHA”), the appellant has continued his campaign in such a way as to lead to applications to commit him to prison for contempt on the basis he has, from time to time, breached the terms of each of these orders.

[11]The first committal proceedings concluded before HHJ Scarratt on 17 January 2017 with findings that the appellant had on three occasions (one in July and two in November 2016) breached the terms of the RRO. The Judge ordered that the appellant be committed to prison for a period of 56 days for his contempt, but suspended the warrant of committal until 17 January 2018 provided that the appellant committed no further breach of the terms of the RRO during that period.

[12]Secondly, on 3 May 2017 HHJ Scarratt found that the appellant had been guilty of contempt of court by failing to comply with the terms of the POHA injunctions in five separate respects relating to different employees of Medway Council over a range of dates covering the period July 2016 to April 2017. On this occasion the Judge made a further 56 day committal order suspended until 15 June 2018 provided that the appellant did not commit any further breaches of the POHA orders. An application by the appellant to discharge the POHA orders was dismissed on the same occasion.

[13]Unfortunately, the appellant’s campaigning behaviour after June 2017 led to the issue of a third set of committal proceedings and it is those proceedings which now form the subject of the present appeal.

[14]The committal application related to allegations of breach of both the RRO and the POHA orders. The final hearing took place before Mr Recorder Royall on 24 November 2017. The appellant appeared as a Litigant in Person, albeit that he was assisted by a McKenzie Friend. At the conclusion of the proceedings the Recorder found five of the six allegations of breach of the RRO proved and held that those breaches were in turn breaches of the suspended sentence relating to the RRO that had been imposed on 17 January 2017. The Recorder also found six of the seven allegations of breach of the POHA order proved and held that those breaches were also breaches of the POHA 56 day suspended prison sentence imposed on 3 May 2017. For the substantive breaches of each of the two orders the Recorder imposed a sentence of 6 months for each breach to run concurrently with each other but consecutive to a further period of 56 days represented by the concurrent activation of the two suspended sentences. The total period of imprisonment is therefore one of approaching eight months.

[15]The appellant did not lodge his notice of appeal until 23 January 2018. As the appeal relates to committal proceedings, there is no requirement for permission to appeal. The court heard the full appeal on 15 March. At the conclusion of the oral hearing we announced our decision which was to dismiss the appeal and uphold the Recorder’s order. This judgment now records my reasons for that decision.

The Recorder’s judgment is succinct and the relevant parts are as follows:

“3 The local authority set out in the application the alleged breaches at paragraph (c). I do not propose to read them out because Mr L in his evidence is the first to accept that the incidents factually occurred. He says that the facts alleged do not support or constitute a breach of that injunction in that he has his personal right as a father to name his own son and his age and indeed subsequently a photograph, but denies that that was likely to identify him and then asked whether there was any evidence that indeed he had been identified. That of course is not the terms of the injunction. The terms of the injunction relate to the fact of giving information, name, date of birth, photograph, which would be likely to identify the child. Mr L says that the picture was taken when his son was nine years old and he had his red eyes, and, therefore, there was no question of these publications leading to or likely to lead to the identification, or risk of identification, of the child. 4 I reject those submissions. I am satisfied in my judgment that the information given by Mr L, over a period of time, as identified by the claimant do indeed indicate a likelihood of identification being a direct breach or breaches in respect of the injunction order of Theis J. 5 Secondly the LA alleged breaches of the injunctions pursuant to the Protection of Harassment Act 1997 as set out in their evidence. Again Mr L openly and honestly accepts that the events occurred, he does not deny them. But he says that the injunction is “illegal”, “that he cannot comply with an illegal injunction”, “I have to carry on, these people are a danger. I will carry on, it is my right. This is a crime that needs to be reported. There is corruption.” ”

[17]The Recorder went on to consider the various statutory defences that are available under the POHA before holding that none of them applied to this case. The Recorder continued:

“10 I should say that having heard from him, at some length but perfectly properly, he accepts these breaches in respect of both injunctions and I am satisfied, having dismissed any defence raised by him, I am satisfied on the criminal standard and burden of proof, that these matters are proved to that standard and I am indeed satisfied so as to be sure.”

The Recorder then went on to pronounce his sentence.

Grounds of appeal

[19]The appellant’s notice of appeal is supported by four pleaded grounds of appeal. It is apparent that those grounds were prepared by a McKenzie Friend on his behalf. In summary the four grounds are as follows: i) Failure to provide the appellant with a full bundle of relevant documents and failure to ensure that the appellant had full legal representation; ii) As a matter of ordinary law it is not illegal to identify social workers and the Judge should therefore have varied the original order to permit the naming of Medway Council employees and the publication of the child’s photograph; iii) The Judge was fully aware that the appellant would embark upon a hunger strike if sent to prison and this information should have been taken into account when deciding the issues of breach and/or sentence; iv) The Judge failed to consider the effect on the child of sending the father to prison.

[20]Those grounds of appeal are supported by a skeleton argument also drawn by the McKenzie Friend.

[21]In addition, the court received a letter apparently directly from the appellant dated 21 February 2018 in which a wide range of different points are made, one, which is of note, reads “I am not instructing a barrister as in previous cases they have failed to follow instruction”.

[22]At the start of the oral appeal hearing the appellant explained that the letter that purports to come from him dated 21 February was in fact typed by a McKenzie Friend on his instruction before it was sent directly to the court. He did not see a copy of this letter until 9 March, a few days before the oral hearing. He explained that he took issue with a number of points in this document, despite that fact that it purports to state his case. He therefore produced a further document in which he challenged the accuracy of at least 10 of the 42 paragraphs in the 21 February document. My Lord and I have taken account of all of this material in so far as it is relevant.

[23]At the appeal hearing the appellant appeared in person, without the assistance of a McKenzie Friend. His submissions were wide ranging, fluent and intelligently argued. At all times he acted appropriately and the Court is grateful to him for the courtesy that he displayed which enabled us to concentrate on the various points that he sought to raise.

[24]Inevitably the focus of his thinking is upon his son and he told us that “everything that I have done has been for my son”. This led him at times to explain the wider points as he sees them relating to the care proceedings and to the right, as he asserts it to be, of any citizen in a civilised country to criticise public servants to the extent that it is both unlawful and impossible for the citizen to be prohibited from making any such criticisms if he wishes to do so. At various times I explained that this court’s role, whilst important in terms of his liberty, was necessarily limited. We do not have jurisdiction to deal with matters relating to his son’s welfare or the care proceedings. We do not have jurisdiction to entertain an appeal against the making of either the RRO or the POHA orders. The focus of the appeal must be upon the committal proceedings so as to ensure that proper and fair process was undertaken at all times, that the findings of breach were properly made and legally justified and, finally, that the sentence imposed was correct as a matter of law, fair and proportionate. Again, to his credit, the appellant seemed to accept these limitations and, in the main, did his best to focus his submissions on the contempt proceedings.

[25]The appellant made the following points of relevance to the contempt proceedings: a) Under the RRO, clause 15(g) permits the publication of the full name of his son as it was in the public domain prior to the making of the order as a result of the interview broadcast on the Russian media channel. b) When he has named his son on ‘Facebook’ he has only ever used the boy’s first name and not his surname. Whilst it may be possible in some cases for individuals to be identified by “jigsaw identification” when only limited information, such as a first name, has been published, the court should not approach the matter assuming that members of the public were all like Sherlock Holmes. Clause 13 of the RRO prohibits publication “if, but only if, such publication is likely…to lead to the identification of the child”. The appellant submits that simply naming the boy’s first name does not establish such likelihood. c) His ‘Facebook’ wall is private, only open to his ‘Facebook’ friends, although any member of the public might find it and go to it if they were particularly looking for a link. The injunction only restricts disclosure “to the general public” and, therefore, publication on his ‘Facebook’ wall is not a breach. d) Identifying the day and month of birth without the year, does not amount to publication of his son’s date of birth sufficient to identify him. e) In order to establish a breach of clause 13 it is necessary to establish that any publication is likely to lead to identification and this state of affairs must be proved beyond reasonable doubt. It is, in the appellant’s submission, not possible for the publication that he admits making on ‘Facebook’ to be proved beyond reasonable doubt as establishing a likelihood of identification. f) Whilst he did not dispute the various publications complained of, he denied that these amounted to any breach of either order and, in particular, he drew attention to a document at page N1 of the bundle which is his statement dated 21 November 2016 submitted to the Judge within the committal proceedings which makes a wide range of points. g) So far as legal representation at the committal hearing is concerned, the appellant accepts that neither he nor his McKenzie Friend applied to adjourn in order to obtain legal representation. He told us that his view on the day was that he would rather have the case finished “one way or the other” and that, in any event, he had had great difficulty in engaging a solicitor to take on his case. In addition, his letter of 21 February states that he is not presently instructing a barrister because, in his view, they have failed to follow his instructions in the past. h) Finally, so far as the length of sentence is concerned, the appellant submits that a prison sentence of 8 months simply for criticising public servants is totally disproportionate.

[26]The appeal is resisted by Medway Council. We are grateful to Mr Chaloner, counsel who has represented Medway throughout these proceedings, for the measured and clear way he has presented the local authority’s case. In particular, Mr Chaloner, in difficult circumstances, maintained a polite and effective working relationship with the appellant during the hearing in order to assist the appellant’s navigation through the various court bundles.

[27]As is plain from our decision, we have rejected the substance of the points of appeal now relied upon by the appellant in support of his appeal. We consider that, with one exception, the actions complained of amounted to clear breaches of the RRO and the POHA orders. The exception relates to the argument relating to the public domain provision in the RRO, referred to at paragraph 25(a) above, which I consider below.

[28]Our reasons for rejecting each of the other points that I have listed at paragraph 25(b)-(g) are as follows: b) Clause 13 of the order is not restricted to prohibition on the use of the full name of the child. Therefore, (subject only to the effect of the public domain provision) the Recorder was not in error in holding that publication using just his first name amounts to a breach. c) The fact that the appellant’s ‘Facebook’ wall is only open to his ‘Facebook’ friends and any member of the public who might find it, is no defence. Clause 13 prohibits “publishing…in any …social networking website…”. Even if the information were only seen by one or two ‘Facebook’ friends, that would, as a matter of law, amount to publishing sufficient to establish a breach of the RRO in this case. d) Although on some occasions the appellant has only given the day and month of his son’s birth date, in other contemporaneous postings he has indicated that his son is about to be 15 years old. The Recorder was not therefore in error in finding a breach. Further, not only does clause 13 prohibit publication which reveals “the identity” of the child it also prohibits publication which reveals “any other particulars or information relating to the child” which must include the day and month of his birth even if the year is not mentioned in any particular posting. e) The appellant’s submission as to the need to prove the likelihood of identification beyond reasonable doubt is misplaced in that it assumes that the only activity prohibited by the RRO is the publication of the child’s identity, whereas the terms of the order make it plain that the specific publication of the name or any other particulars or information relating to the child are themselves separately and specifically prohibited. It was therefore not necessary for the Recorder to have found proof beyond reasonable doubt that a member of the public would be likely to identify the child where, separately, the child‘s name has been published. f) Despite the wide range of points made in the appellant’s document at N1 and made in support of his appeal before this court, there is no basis for holding that the Recorder was wrong in concluding so that he was sure that each of the admitted publications was indeed a breach of one or other or both of the RRO and POHA orders. g) Prior to the oral hearing, the point raised in the pleaded grounds that most concerned me was the question of legal representation. Having now heard the appellant it is clear that at no stage did he invite the Recorder to adjourn so that he might obtain legal representation. On the day he wished to proceed with the application and, as he told us, in any event he had had difficulty in engaging a solicitor and had had previous negative experiences when represented by barristers.

[29]Turning to the appellant’s argument at paragraph 25(a) above concerning the public domain provision, this argument does not appear, so far as I can see, to have featured prominently, if at all, in the hearing before the Recorder and it did not emerge as a ground of appeal until the appellant addressed us. As a matter of interpretation, I would accept that the RRO did not prevent the publication of the child’s name in full or in part insofar as it had already been lawfully published by the Russian media channel. The consequence is that one of the eleven findings made by the Recorder (the finding at 3(i) of the Schedule to the Order, referring to a Facebook message naming the child on 3rd October 2017) cannot stand. This conclusion has no effect on any of the other findings in relation to the RRO and does not affect the findings in relation to the POHA at all. Nor, in our view, is it relevant to the appropriateness of the appellant’s sentence.

[30]It seems clear to us that it was not the intention of Theis J or HHJ Scarratt that the public domain provision should have had the effect described in the preceding paragraph.

(g) of the RRO by the addition of the words in bold:

“15 Nothing in this order shall prevent any person from:… g) Publishing information (other than the child’s name) which before the service on that person of this order was already legally in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England or Wales.”

[31]Finally in relation to the recorder’s findings of breach, the point raised in the grounds of appeal relating to the relevance of the appellant’s threat to go on hunger strike if sent to prison and the assertion that the judge had failed to consider the impact on the child if his father were sent to prison were, rightly, not pursued at the oral hearing.

[32]I therefore turn, finally, to consider the length of sentence.

[33]The appellant is entirely justified in stating to this court that a citizen is normally entitled to criticise publicly the actions of a public servant. He rightly refers to the judgment of Sir James Munby P in Re J (A Child: Contra Mundum Injunction)

[2013] EWHC 2694 (Fam)

in support of this proposition that this is the default position. But, as Sir James Munby makes clear at paragraphs 20 to 24, that default position can, in an appropriate case, be altered by the court granting an appropriate injunction to protect the anonymity of particular individuals where to do so is justified by compelling reasons.

[34]Unfortunately, this appellant’s action in voicing his public criticism of Medway Council social workers has been conducted in such a manner that the Family Court has been satisfied that this amounts to unlawful harassment. The appellant finds himself before the court and facing punishment for contempt not because he is an ordinary citizen who has simply criticised a public servant, but because he has been found to have acted in breach of the express orders of the court.

[35]In determining the length of sentence the Recorder was required to take account of the history of the proceedings and, in particular, that the appellant had been given the opportunity to avoid an immediate custodial sentence at separate hearings, 6 months apart, one relating to the RRO and the other to the POHA order. Notwithstanding the second chance that HHJ Scarratt had afforded the appellant on the two occasions, he had gone on, within months of the suspended sentences being passed, to repeat the same or similar behaviour. In the circumstances, given the number of breaches and the flagrant disregard of the court’s orders that each such breach represented, the Recorder’s sentence of 6 months for the substantive breaches was entirely proportionate. As the list of breaches with respect to the two separate orders in fact largely arose from the same set of ‘Facebook’ postings, the Recorder rightly directed that the two separate 6 month prison sentences should run concurrently.

[36]By breaching the RRO and the POHA orders after suspended sentences had been imposed, the appellant breached the terms of each of the two suspended prison sentences. Against the background that I have described, there was no basis upon which the Recorder could properly ignore or set aside the breaches of the suspended sentences. Further, the Recorder was justified in directing that the two 56 day terms should run concurrently with each other but consecutively to the substantive 6 month sentence that he had passed for the more recent breaches.

[37]In all the circumstances a total sentence of 8 months imprisonment was justified and there are no grounds upon which this court could properly interfere with it.

[38]For the reasons that I have now set out, I concluded that the appeal must be dismissed.

[39]Finally, it is necessary to stress to the appellant that the RRO (as varied) and the POHA orders remain in force. He will soon be released from prison having served half of the 8 month term. No matter how strongly he may feel about his son’s circumstances and the situation in which he finds himself, he should be in no doubt that if there is any repeat of the type of conduct which has led to the findings of breach in this case, he is liable to be brought back before the court again and, if any further breaches are proved, liable to face a further prison term. If he does so, this otherwise intelligent father will have brought these matters down on his own head and he will have no-one to blame but himself. It is to be hoped that he will now abide by the clear terms of these injunctions.

LORD JUSTICE PETER JACKSON:

[40]I agree.

order

“…this order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite programme service any information that reveals i) The identity or name or address or whereabouts of the child, or ii) The name of the father, or iii) The identity or name or address or whereabouts of his carers, or iv) Any pictures of the child or his carers, or v) The name of any school or contact centre which the child attends or any other information which might identify those premises, including a picture, or vi) Any other particulars or information relating to the child IF, BUT ONLY IF: Such publication is likely, whether directly or indirectly, to lead to the identification of the child as being: a) A child who has been subject of proceedings under the Children Act 1989 since April 2015; and/or b) A child who has been removed from the care of his father; and/or c) A child whose contact with his parents has been prohibited or restricted.” i) The identity or name or address or whereabouts of the child, or ii) The name of the father, or iii) The identity or name or address or whereabouts of his carers, or iv) Any pictures of the child or his carers, or v) The name of any school or contact centre which the child attends or any other information which might identify those premises, including a picture, or vi) Any other particulars or information relating to the child IF, BUT ONLY IF: a) A child who has been subject of proceedings under the Children Act 1989 since April 2015; and/or b) A child who has been removed from the care of his father; and/or c) A child whose contact with his parents has been prohibited or restricted.”